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[2015] ZAFSHC 60
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Mekgoe v S (A183/2013) [2015] ZAFSHC 60 (20 March 2015)
IN THE HIGH COURT OF
SOUTH AFRICA
FREE STATE DIVISION,
BLOEMFONTEIN
Case No.: A183/2013
DATE: 20 MARCH 2015
In the matter between:
DANNY
MEKGOE
...................................................................................................................
Applicant
And
THE
STATE
...........................................................................................................................
Respondent
CORAM: DAFFUE, J et NAIDOO, J
JUDGMENT BY: DAFFUE, J
HEARD ON: 20 MARCH 2015
DELIVERED ON: 20 MARCH 2015
[1] This is an application by the
applicant, Mr Danny Mekgoe, for leave to appeal to the Supreme Court
of Appeal against our judgment
delivered on 13 March 2014. Adv J.
Nel appears for the applicant and Adv J. Swanepoel for the DPP.
[2] On 3 March 2014 we heard an appeal
by Mr Mekgoe directed at his conviction of fraud by the regional
court, sitting at Bothaville.
He was sentenced to 15 years’
imprisonment, but there was no appeal against sentence.
[3] As mentioned, we dismissed the
appeal in a judgment delivered on 13 March 2014.
[4] On 27 November 2014, eight and a
half months later and hopelessly out of time, an application for
leave to appeal our judgment
was filed. It was accompanied by an
application for condonation.
[5] My clerk’s e-mail dated 2
February 2015 sent to Mr B. Jacobs (the applicant’s present
attorney) and Mr Swanepoel,
written at my request, reads as follows:
“Daffue R het my versoek om
hierdie skrywe aan u te rig na aanleiding van die gesprekke met Mnr
Jacobs en Adv Nel die afgelope
Vrydag.
Anders as vermeld is Naidoo R nie meer
beskikbaar op Vrydag 6 Februarie 2015 nie. Die enigste week hierdie
kwartaal wat beide regters
saam in Bloemfontein is (behalwe vir
hierdie week), is die week van 16 tot 20 Maart 2015. Die regters kan
die aansoek aanhoor
om 08h30 op enige dag vanaf Dinsdag 17 tot Vrydag
20 Maart, onderhewig aan die aspek vermeld te word in die volgende
paragraaf.
Kommunikeer asseblief met mekaar en laat weet my teen
Woensdag 4 Februarie watter datum beide advokate pas.
Ek bevestig ook dat Daffue R reeds
vroeër ‘n kennisgewing van Rampai wnde R aan u Mnr Jacobs
oorhandig het met betrekking
tot die huidige regsposisie ten aansien
van appèlle vanaf die Hoë Hof wat voortspruit uit
verrigtinge in die laer howe.
Prima facie wil dit voorkom soos aan u
oorgedra in kamers dat die twee regters nie die aansoek kan beslis
nie. Sou u egter volhard
dat die aansoek wel deur hulle aangehoor
behoort te word nieteenstaande die wetswysiging, moet u my
dienooreenkomstig inlig en
ook bereid wees om hulle toe te spreek in
hierdie verband.
Ek sien uit om van u te verneem soos
hierbo versoek en indien u sou besluit om nie met die aansoek voort
te gaan nie, moet u so
spoedig doenlik ‘n kennisgewing van
terugtrekking liasseer.”
[6] I confirm that I informed Messrs
Jacobs and Nel in chambers that I was prima facie of the view that
this court does not have
jurisdiction to entertain the application
and that special leave to appeal had to be obtained from the Supreme
Court of Appeal.
I even handed them a copy of a circular by Rampai
AJP (as he then was) to judges of this division confirming my
viewpoint.
[7] Notwithstanding my viewpoint the
legal team of the applicant insisted that we hear the matter and it
was enrolled for hearing
on 20 March 2015 at 08h30.
[8] On 18 March 2015 I obtained an
e-mail from the librarian of the Free State High Court with the SCA
judgments delivered on the
17th of March 2015. The judgment of
Potgieter v S (20109/2014)
[2015] ZASCA 15
(17 March 2015) was
amongst these judgments. Co-incidentally, Mr Swanepoel of the DPP’s
office brought a copy of this judgment
to my chambers that same
afternoon. The judgment is marked “not reportable”.
[9] I quote from paragraphs 2 and 3 of
the judgment:
“[2] A full court of the Free
State Division of the High Court (Rampai 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.”
[10] On 13 March 2015 we were again
reminded of the obligation to observe the maxim stare decisis, the
doctrine of precedents.
I refer to the judgment of the SCA in First
Rand Bank v Kona and another 20003/2014
[2015] ZASCA 11
(13 March
2015) and I quote from paragraphs 21 and 22:
“[21] The decision of this court
in Naidoo and that of the Constitutional Court in Ferris were
referred to in the judgment
of the high court. The legal principles
enunciated in the two decisions were binding on that court and
precluded it from arriving
at any of the three conclusions to which I
have referred. The statement of principle by Didcott J in Credex
Finance (Pty) Ltd
v Kuhn
1977 (3) SA 482
(N) that is thus concisely
summarised in the headnote to that judgment is in point:
‘The doctrine of judicial
precedent would be subverted if judicial officers, of their own
accord or at the instance of litigants,
were to refuse to follow
decisions binding on them in the hope that appellate tribunals with
the power to do so might be persuaded
to reverse the decisions and
thus to vindicate them ex post facto. Such a course cannot be
tolerated.’
[22] The Constitutional Court, in Camps
Bay Ratepayers’ and Residents’ Association & another
v Harrison & another
2011 (4) SA 42
(CC), paras 28-30, expressed
itself in no uncertain terms about observance by courts of the maxim
stare decisis or the doctrine
of precedent. Brand AJ, in delivering
the unanimous judgment of the court said:
‘Considerations underlying the
doctrine were formulated extensively by Hahlo & Kahn [Hahlo &
Kahn The South African
Legal System and its Background (Juta), Cape
Town 1968) at 214-15]. What it boils down to, according to the
authors, is: '(C)ertainty,
predictability, reliability, equality,
uniformity, convenience: these are the principal advantages to be
gained by a legal system
from the principle of stare decisis.'
Observance of the doctrine has been insisted upon, both by this court
and by the Supreme
Court of Appeal. And I believe rightly so. The
doctrine of precedent not only binds lower courts, but also binds
courts of final
jurisdiction to their own decisions. These courts can
depart from a previous decision of their own only when satisfied that
that
decision is clearly wrong. Stare decisis is therefore not simply
a matter of respect for courts of higher authority. It is a
manifestation
of the rule of law itself, which in turn is a founding
value of our Constitution. To deviate from this rule is to invite
legal
chaos.’”
[11] It is so that Mr Nel indicated
when he stood up this morning that he considered himself bound by the
Potgieter judgment and
that he would ask that the matter be struck
from the roll as it appears to be the only order that he could ask
for, although he
was of the view that the SCA judgment was wrong,
bearing in mind the clear indications in the
Superior Courts Act.
[12
] We are bound by judgments of the
SCA, irrespective of what we believe the correct legal position
should be.
[13] The SCA did not set out full
reasons for its conclusion in Potgieter loc cit and it is perhaps
necessary to refer to the following
which confirm why I am of the
view that the SCA judgment is beyond reproach.
[14] The Superior Courts Act, 10 of
2013, (“the Act”) came into operation on 23 August 2013
and before we considered
the appeal in March last year and more than
a year before the filing of the present application for leave to
appeal. Section 16(1)(b)
of the Act reads as follows:
“16(1) Subject to section 15(1),
the Constitution and any other law-
(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;”
(emphasis added.)
[15] It is true that “appeal”
in Chapter 5 (section 16 falls within Chapter 5) “does not
include an appeal in
a matter regulated in terms of the
Criminal
Procedure Act, 51 of 1977
, or in terms of any other criminal
procedural law” – See section 1 of the Act.
[16] Section 52 of the Act deals with
pending proceedings in any court at the commencement of the Act.
These must be continued
and conducted as if this Act had not been
passed. Proceedings are deemed pending – section 52(2) –
if at the commencement
of the Act a summons had been issued, but
judgment had not been passed. No summons had been issued in the High
Court in this regard
and no judgment still has to be delivered. This
section would apparently be applicable to pending civil matters only.
[17] An issue to be considered is
whether the application for leave to appeal is not excluded from the
effect of section 16(1)(b)
based on the definition of “appeal”
in section 1 of the Act and thus, whether it is not regulated by the
Criminal Procedure Act
(“the CPA”) or any other criminal
procedural law.
[18] Reviews and appeals in cases of
criminal proceedings in the lower courts are dealt with in Chapter 30
of the CPA –
sections 302
to
314
.
Section 309
deals with
appeals from the lower courts.
Section 309B
deals with applications
for leave to appeal in the lower courts. Appeals in cases of
criminal proceedings in the High Courts
are dealt with in Chapter 31
–
sections 315
to
324
.
Section 316
deals with applications for
leave to appeal in the High Courts. Subsection 316(1) makes it clear
that the section regulates applications
for leave to appeal against
convictions and sentences of the High Court.
[19] Nowhere in the CPA or in any other
criminal procedural law is any procedure to be found which regulates
applications for leave
to appeal judgments given by the High Court on
appeal, save for sub-section 316(3)(a) which stipulates that no
appeal shall lie
against the judgment or order of a full court given
on appeal to it in terms of
section 315(3)
, except with the special
leave of the Supreme Court of Appeal.
[20] Applications for leave to appeal
in respect of judgments or orders of the High Court given on appeal
have been dealt with in
the past in terms of
section 20(1)
, read with
section 20(4)(b) of the Supreme Court Act, 59 of 1959, which Act has
been repealed by the
Superior Courts Act. Section
20 (1) stipulated
as follows:
“(1) An appeal from a judgment
or order of the court of a provincial or local division in any civil
proceedings or against
any judgment or order of such a court given on
appeal shall be heard by the appellate division or a full court as
the case may
be.” (emphasis added.)
Section 20
(4) stipulated as follows:
“No appeal shall lie against a
judgment or order of the court of a provincial or local division in
any civil proceedings or
against any judgment or order of that court
given on appeal to it except –
(a)……
(b) in any other case, with the leave
of the court against whose judgment or order the appeal is to be made
or, where such leave
has been refused, with the leave of the
appellate division.”
See also Farlam et al, Erasmus,
Superior Court Practice, A1-40 and Prokureursorde, Oranje-Vrystaat v
Louw
1989 (1) SA 310
at 315A. Sub-sections 20(1) and (4) regulated
the procedure to be followed until the commencement of the Supreme
Courts Act in
2013.
[21] The effect of all this is that
neither the CPA, nor any other criminal procedural law, regulates
applications for leave to
appeal judgments or orders of the High
Court given on appeal such as in casu. We cannot adjudicate the
application for leave to
appeal and special leave to appeal should be
obtained from the Supreme Court of Appeal in terms of
section
16(1)(b)
of the
Superior Courts Act, 10 of 2013
.
[22] Mr Nel is correct that,
notwithstanding his own view of the legal position, this court has no
other option than to strike the
matter from the roll.
[23] Consequently the following order
is made:
The applications for leave to appeal
and condonation are struck from the roll.
J. P. DAFFUE, J
I concur.
S NAIDOO, J
On behalf of appellant: Mr J Nel
Instructed by:Jacobs Attorneys
BLOEMFONTEIN
On behalf of respondent: Adv J
Swanepoel
Instructed by: Director: Public
Prosecutions
BLOEMFONTEIN