S v Mngonyama

• Jurisdiction: South Africa
• Judge: Beck JP
• Judgment Date: 16 March 1995
• Citation: 1995 (1) SACR 516 (TK)
• Hearing Date: 16 March 1995
• Counsel: M Nonkonyana for the applicants at the request of the Court N J de Plessis for the State
• Court: Transkei Supreme Court

Beck JP:

This is an application for leave to appeal against both conviction and sentence. Counsel for the applicants was initially unable to indicate to which Court an appeal from a judgment in a criminal trial before the General Division of the Transkei Supreme Court now falls to be directed. He has however, subsequently submitted that s 3(1)(a) of the Transkeian Supreme Court Act 35 of 1983, confers upon the Transkei Supreme G Court the jurisdiction to hear appeals by a Full Bench of three Judges, by reason of the following proviso in that section: F

'Provided that the Chief Justice, or, in his absence, the senior available Judge of the General Division, may at any time direct that any matter be heard by a Full Court consisting of so many Judges as he may H determine.'

The submission is untenable. Section 3(1)(a) of the Transkei Supreme Court Act deals only with a Court of the General Division sitting as a Court of first instance and has nothing whatsoever to do with such a Court sitting as a Court of appeal. In terms of s 45(2)(a) of the Republic of I Transkei Constitution Act, 1976, and s 3(1)(b) of the Transkeian Supreme Court Act, the General Division of the Transkei Supreme Court was given appellate jurisdiction only in relation to appeals from all lower courts. Jurisdiction to hear appeals from judgments or orders of the General Division vested only in the Appellate Division of the Supreme Court of J Transkei, in terms of s 45(3) of the Republic of Transkei Constitution Act.

Beck JP

A The Appellate Division of the Supreme Court of Transkei had ceased to exist, save for the purpose of disposing of noted appeals that were still pending at the date of commencement of the Constitution of the Republic of South Africa Third Amendment Act 13 of 1994. However, the Appellate Division of the Supreme Court of South Africa has been given jurisdiction B over the whole of the national territory, including therefore the Transkei, in terms of s 241(1A) of the Constitution of the Republic of South Africa, 1993, as amended.

In a recent judgment (as yet unreported) of the Bophuthatswana Supreme Court in a civil matter, Steelchrome (Pty) Ltd v Jacobs and Others, Comrie J held that appeals from the General Division of the Bophuthatswana Supreme Court now lie, on leave given, to the South African Appellate C Division. I respectfully agree with the reasoning and conclusion of the learned Judge. In my view civil and criminal appeals...