Rex v Kalogeropoulos

• Jurisdiction: South Africa
• Citation: 1945 AD 38

Rex Respondent v Kalogeropoulos Applicant
1945 AD 38

1945 AD p38

Citation	1945 AD 38
Court	Appellate Division
Judge	Watermeyer CJ, Tindall JA, Feetham JA, Greenberg JA and Davis AJA
Heard	September 15, 1944
Judgment	October 17, 1944

Flynote : Sleutelwoorde

Criminal procedure — Appeal to Appellate Division — Decision of Supreme Court — Extraordinary jurisdiction to grant leave to appeal — When exercised — Appeal on question of law — Act 31 of 1917, Chapter XX.

Headnote : Kopnota

The Appellate Division has jurisdiction to grant special leave to appeal in a criminal case in the Supreme Court in which by a disregard of the forms of legal process or by some violation of the principles of natural justice or otherwise substantial and grave injustice has been done.

Such extraordinary jurisdiction may be exercised even if the applicant bases his application on an irregularity or on a point of law which could properly be brought before the Court by the procedure of special entry or reserved point of law prescribed in Act 31 of 1917 and even if the trial Judge has refused to make a special entry or to reserve a point of law, though the circumstances would have to be very special before the Court would grant special leave to appeal where the applicant had neglected to utilise the procedure laid down in Chapter XX of Act. 31 of 1917 if the points he wishes to take on appeal are points capable of presentation by means of the procedure contained in the chapter.

The question whether such extraordinary jurisdiction can be exercised in the case of a conviction in a local Division or Court other than the Supreme Court raised but not decided.

The case of Rex v Didat (1913 AD 299), followed. Rex v Laubscher (1926 AD 276) and Rex v Abid (1938 AD 517), considered.

Case Information

Application for leave to appeal from a conviction by MILLIN, J.,

1945 AD p39

sitting without a jury, in the Witwatersrand Local Division. The facts appear from the judgment of WATERMEYER, C.J.

A. Shacksnovis, K.C. (with him V. Rosenstein and B. Merber), for the applicant.

F. E. Lutge, K.C., A.-G., for the Orange Free State for the Crown in limine. The Court has no jurisdiction to entertain the application. The refusal of the trial Judge to reserve, under sec. 372, Act 31 of 1917, the question of law is absolute. Rex v Thielke (1918 AD 373 at p. 376). A refusal to reserve a point of law leaves a convicted prisoner without further remedy. Rex v Louw (1918 AD at pp. 348-349 et seq.); Rex v Wildauer (1934 AD 51 at p. 54); Rex v Nafte (1929 AD 333 at p. 338); Rex v Raynal (1943 W.L.D. 20); Rex v Meiring (1927 AD 41), and cf. Union Government v Fakir (1923 AD 466). The non-statutory relief is only available in cases falling outside secs. 369, 370 and 372 of the Act. Rex v Louw (supra at p. 355); Rex v Laubscher (1926 AD 276 at p. 285); Rex v Abid (1938 AD 517 at p. 521); Rex v Didat (1913 AD at p. 299); Rex v Leo and Another (1914 AD p. 241); Rex v Rorke (1915 AD 145; Rex v Silber (1940 AD 187). As to the state of the law before Act 31 of 1917 was passed, see Ordinance 1 of 1903 (T.), secs. 268 and 270; Act 39 of 1896 (N.), sec. 50 (vol. 1, Hitchens). As to when a Superior Court will assume jurisdiction, see Johannesburg Con. Investment Co. v Johannesburg Town Council (1903 T.S. 111); Barlin v Licensing Court, Cape (1924 AD 472); Moola v Potchefstroom Municipality (1927 T.P.D. 522); Bignaar v Municipal Council of Rustenburg (1927 T.P.D. 615). A wrong conclusion as to facts and a wrong construction on a point of law are not matters for an assumption of extra-statutory jurisdiction. Barlin (supra at p. 474); Doyle v Shenker and Co. (1915 AD 233 at pp. 236 et seq.). The power of the Appellate Division to interfere has been taken away in respect of the matters falling within the ambit of sec. 372, Bertrand v Attorney-General (4 Moo. P.C., N.S. 460); Rex v Falkland Islands Co. (1 Moo. P.C., N.S. 299). As to the meaning of the words "principles of natural justice" in regard to the exercise of its extra-statutory jurisdiction, see Marlin v Durban Turf Club and Others (1942 AD 112); and cf. Rex v Rose (1937 AD at p. 467); Rex v Saffy and Bennett (1944,. A.D, 391); the words "or otherwise" are superfluous, cf. Rex v Hendricks (1915 CPD 821); Rex v Caganoff (1933 AD 51), and the cases following it, are wrongly

1945 AD p40

decided. As to stare decisis, see Rex v Nxumalo (1939 AD 580).

Shacksnovis, K.C., in reply: Special leave to appeal will be granted (a) where there is a reasonable prospect of success on appeal, Rex v Galperowitz (1941, A.D,. 485); Rex v Sebeso and Others (1943 AD at p. 204); (b) if it is shown that there has been a disregard of the forms of legal process or some violation of the principles of natural justice, or otherwise substantial and grave prejudice to the accused. Rex v Laubscher (supra); Rex v Didat (supra); Rex v Caganoff (supra); Rex v Abid (1938 AD 517); Rex v Galperowitz (supra). Leave should also be granted to appeal against the sentence, which was assessed on a wrong basis, Rex v Sandig (1937 AD 296); Rex v Coetzee (1936 AD 471); Ex parte Minister of Justice: In re Rex v Berger (1936 AD 334).

Lutge, K.C., was not called upon to reply on the merits.

Cur adv vult.

Postea (October 17th).

Judgment

Watermeyer, C.J.:

On the 5th April, 1944, MILLIN, J., sitting without a jury in the Witwatersrand Local Division of the Supreme Court, convicted the applicant of the offence of being in unlawful possession of unwrought gold. After conviction application was in made to the learned Judge to reserve, for the consideration of this Court, the question whether there was any evidence before the Court upon which the applicant could reasonably have been convicted. This application was refused, and the applicant thereafter presented a petition to this Court asking for special leave to appeal against his conviction on two grounds:

(a)

That there had been a disregard of the forms of legal process and a violation of the principles of natural justice whereby a substantial and grave miscarriage of justice had taken place;

(b)

that no evidence had been put before the trial Court upon which a reasonable man could convict.

The procedure, which was alleged to be irregular and to constitute a disregard of the forms of legal process, was the admission at the trial, without notice to the accused, of certain evidence which had not been led at the preparatory examination. The

1945 AD p41

Watermeyer, C.J.

substance of the evidence so admitted was that the police had found on the accused's premises, among other things, a brown glass phial or bottle containing nitric acid. This bottle had been seized by the police, but it had been broken accidently before the preparatory examination was held, and most of the contents had been lost. These facts were not mentioned at the preparatory examination, but subsequently the small quantity of liquid remaining in the broken bottle was analysed and found to be nitric acid and then the Crown decided to prove these facts at the trial. It is clear that the accused knew about the bottle; it was found in his presence and the evidence shows that it was broken when accused's attorney, while handling it at the charge office, dropped it on the floor.

At the hearing of the petition before us the Attorney-General admitted that it was customary to give an accused person notice if the Crown intended, at the trial, to lead evidence which had not been led at the preparatory examination, and said that it was only through an oversight that this had not been done. At the trial the accused had been offered an adjournment to enable him to deal with the evidence about the bottle, but his counsel declined the Offer.

When the petition came before us, the Attorney-General raised, as a preliminary point, a question as to the powers of this Court to grant special leave to appeal and as to the exercise of those powers in the circumstances of this case. He pointed out that no special entry had been applied for under sec. 370 of Act 31 of 1917 and that the trial Judge had refused to reserve, under sec. 372 of the Act, the specific question of law which the applicant now wished to raise. He put forward several contentions which may be summarised as follows:

(a)

That this Court has no power, more particularly since Act 31 of 1917 was passed, to grant special leave to appeal in any criminal cases except where specific statutory provisions vest such power in the Court;

(b)

that if this Court has any power to grant special leave to appeal in criminal cases other than under such specific statutory provisions, it does not have that power in cases in which the applicant bases his application for special leave on an irregularity or on a point of law which in ordinary circumstances can properly be brought before this Court by

1945 AD p42

Watermeyer, C.J.

the procedure of special entry or reserved point of law provided by sec. 372 of the Act;

(c)

that even if this Court has power to grant special leave in the cases referred to in (b) it will not exercise that power if the Judge has refused to make a special entry or to reserve a point of law;

(d)

that even if it has power to grant, special leave in cases referred to in (b) it will not in any event exercise that power if the applicant has failed to take advantage of the provisions of secs. 370 and 372 by applying to the trial judge for a special entry to be made or for the reservation of a point of law.

Before entering upon a consideration of these contentions, I think it is of assistance to remember the useful distinction between an appeal and a review in criminal matters, because if this distinction is not borne in mind it leads to confusion. If the Court of Appeal exercises appellate functions in the full sense of the word it retries the case on the record and substitutes its...