S v Khumalo

• Jurisdiction: South Africa
• Citation: 2009 (1) SACR 503 (T)

S v Khumalo
2009 (1) SACR 503 (T)

2009 (1) SACR p503

Citation	2009 (1) SACR 503 (T)
Case No	A1249/2006
Court	Transvaal Provincial Division
Judge	Preller J, Ledwaba J and Vilakazi AJ
Heard	February 2, 2008
Judgment	May 16, 2008
Counsel	AM Viviers for the appellant, instructed by the Legal Aid Board, Pretoria.; MNC Menigo for the State.

Flynote : Sleutelwoorde

Appeal — Leave to appeal — Granting of — When grant of leave to appeal a B nullity — Leave to appeal refused after imposition of sentence — Same judge granting leave to appeal some four years later — Judge functus officio after refusal of leave to appeal — Subsequent grant of leave to appeal a nullity — Court not having inherent jurisdiction to hear appeal not properly before it — Appeal not properly before court and struck off roll. C

Headnote : Kopnota

The appellant had been convicted in a regional magistrates' court of rape and abduction. In terms of the provisions of the Criminal Law Amendment Act 105 of 1997 the appellant was referred to the High Court for sentence. The High Court confirmed the convictions and sentenced the appellant to life D imprisonment on the rape conviction and to five years' imprisonment on the abduction conviction. The appellant applied on the same day for leave to appeal against both the sentence and the conviction, but the application was dismissed. Some four years later the same judge granted the appellant leave to appeal to the full court against sentence (there being no indication on the record that the judge was aware that he had previously refused leave E to appeal against the sentence).

Held, that, subject to certain exceptions, a judge, having uttered a definite judgment, is functus officio and cannot thereafter alter, supplement, amend or correct the judgment. (At 505i.)

Held, further, that the power of the court to regulate its procedure did not include the power to hear a matter which was not the proper subject of an appeal. F This was simply because the court's appellate jurisdiction was not an inherent jurisdiction and s 173 of the Constitution of the Republic of South Africa, 1996, did not change the position. (At 506f-i.)

Held, accordingly, that the granting of leave to appeal in the face of his previous refusal of such leave by the judge who imposed the sentences was a nullity and the appeal case was not properly before the court. (At 508h.) Appeal G struck off the roll.

Annotations:

Cases cited

Reported cases

De Wet and Others v Western Bank Ltd 1977 (2) SA 1033 (W): distinguished H

De Wet and Others v Western Bank Ltd 1979 (2) SA 1031 (A): distinguished

Estate Garlick v Commissioner for Inland Revenue 1934 AD 499: dictum at 502 applied

Hansen v The Regional Magistrate, Cape Town, and Another 1999 (2) SACR 430 (C): considered

Matjila v Director of Public Prosecutions, Transvaal Provincial Division I 2002 (1) SACR 507 (T): approved

R v D and Another 1953 (4) SA 384 (A): considered

R v Maharaj 1958 (4) SA 246 (A): applied

R v Mokwena 1953 (4) SA 133 (T): considered

R v Sibande 1958 (3) SA 1 (A): applied

S v Ebrahim 1972 (2) SA 61 (C): referred to J

2009 (1) SACR p504

S v Fourie 2001 (2) SACR 118 (SCA) ([2001] 4 All SA 365): dictum at 121a - c applied A

S v Gentle and Another 2003 (1) SACR 395 (C): approved and applied

S v Mahomotsa 2002 (2) SACR 435 (SCA) ([2002] 3 All SA 534): referred to

S v Malgas 2001 (1) SACR 469 (SCA) (2001 (2) SA 1222; [2001] 3 All SA 220): referred to B

S v Rens 1996 (1) SACR 105 (CC) (1996 (1) SA 1218; 1996 (2) BCLR 155): referred to

S v Sawman 2001 (1) SACR 649 (E): not approved and not followed

S v Scout 1969 (1) SA 545 (E): considered

S v Twala (South African Human Rights Commission Intervening) C 1999 (2) SACR 622 (CC) (2000 (1) SA 879; 2000 (1) BCLR 106): referred to

S v Vontsteen 1972 (4) SA 1 (T): applied

Sefatsa and Others v Attorney-General, Transvaal, and Another 1989 (1) SA 821 (A): dictum at 839B - C applied.

Legislation cited

Statutes

D The Constitution of the Republic of South Africa, 1996, s 173: see Juta's Statutes of South Africa 2007/8 vol 5 at 1-47

The Criminal Law Amendment Act 105 of 1997: see Juta's Statutes of South Africa 2007/8 vol 1 at 1-521 et seq.

Case Information

Appeal from a sentence imposed in the Transvaal Provincial Division E (Hussain J). The facts appear from the reasons for judgment.

AM Viviers for the appellant, instructed by the Legal Aid Board, Pretoria.

MNC Menigo for the State.

Cur adv vult. F

Postea (May 16).

Judgment

Preller J:

The appellant was convicted in the regional court on counts of rape and abduction. Three men who pretended to be police officers G assaulted the complainant's husband and abducted her from their home at night under the pretext that she was to point out a certain Vusi to them. She was driven to a sports stadium where the men raped her in turn. Only the present appellant appeared in court, the other two having escaped arrest.

H Because the complainant had been raped three times the proceedings in the regional court were stopped after the conviction and the appellant was referred to the High Court for sentence in terms of the provisions of the Criminal Law Amendment Act 105 of 1997.

I The matter came before Hussain J on 3 May 2002 and the convictions on both counts were confirmed. After finding that there were no substantial and compelling circumstances justifying the imposition of a lesser sentence the appellant was sentenced to imprisonment for life on the count of rape and to a sentence of five years on the count of abduction. An application for leave to appeal against both the sentence J and the conviction was dismissed on the same day.

2009 (1) SACR p505

Preller J

Included in the Record Is a Court Order by Hussain J Dated 4 April 2006 A According to which He Granted an Application for Leave to Appeal to the Full Court Against Sentence Only. I Later Obtained a Copy of the Relevant Judgment in which Hussain J Mentioned that When He Had Dealt...