S v Mthethandaba

• Jurisdiction: South Africa
• Judge: Koen J and Vahed J
• Judgment Date: 21 January 2014
• Citation: 2014 (2) SACR 154 (KZP)
• Docket Number: AR 463/2007
• Hearing Date: 21 January 2014
• Counsel: Counsel's details not provided.
• Court: KwaZulu-Natal Division, Pietermaritzburg

Vahed J (Koen J concurring):

[1] On 16 August 2006 the applicant and a co-accused were convicted in B the regional court, Durban on charges of robbery with aggravating circumstances (count 1) and attempted murder (count 2), and were each sentenced to serve 15 years' imprisonment on count 1 and 10 years' imprisonment on count 2. Five years of the sentence in respect of count 2 were ordered to run concurrently with the sentence on count 1. Their effective term of imprisonment was thus 20 years. C

[2] On 23 July 2007 the applicant's application for leave to appeal against sentence only was dismissed. He subsequently applied on petition to this court against that refusal. The petition was dealt with in chambers by Hugo and Niles-Dunér JJ who, on 10 December 2007, refused same. D

[3] Duly supported by an application for condonation for the delay, the applicant now, in terms of an application delivered on 8 November 2013, applies for leave to appeal to the Supreme Court of Appeal against E that last refusal. Hugo and Niles-Dunér JJ are no longer serving members of this court, [1] with the result that the application was placed before Koen J and me.

[4] In S v Khoasasa: [2]

'The appellant was convicted in a regional court. After he had been F convicted and sentenced, he applied for leave from the trial court, in terms of s 309B of the Criminal Procedure Act 51 of 1977, to appeal against his conviction and sentence. The application was refused. Thereafter he petitioned the Judge President of a Provincial Division in terms of s 309C of the Criminal Procedure Act for such leave. The application was refused by two Judges of the Provincial Division. G Subsequently the appellant, by means of a petition to the Chief Justice, applied to the Supreme Court of Appeal for leave to appeal against his sentence. The application was considered by two Judges of the SCA and they ordered that leave be granted to appeal to the SCA, subject to the condition that the question whether that Court had the jurisdiction to hear the matter be argued in limine. The appellant thereupon appealed to the SCA. H

[The SCA] held that there was no doubt that the refusal, by two Judges of the Provincial Division, of leave to appeal was a judgment or order or a ruling of the Court of the Provincial Division as intended in s 20(1) or s 21(1) of the Supreme Court Act 59 of 1959. . . . I

[It] held, further, that the application directed to the Judge President of a Provincial Division for leave to appeal against a conviction or sentence in a lower court after such leave had been refused by the lower

Vahed J (Koen J concurring)

A court was not described in s 309C as an appeal, but it was still directed at correcting what the applicant regarded as an incorrect decision in the lower court. In effect it was nothing other than an appeal against the magistrate's refusal of leave to appeal. . . .

Held, accordingly, that the order of the Court a quo in terms of which B the appellant had been refused leave to appeal was an order of that Court which had been given on appeal, as intended by s 20(3) of the Supreme Court Act. The appellant, with the necessary leave, could have appealed to the SCA against the Court a quo's order refusing leave to appeal. The leave required was the leave of the Court a quo or, where such leave was refused, the leave of the SCA. . . .

C Held, further, that the appellant had not applied to the Court a quo for leave to appeal before he applied to the SCA for such leave. Therefore leave to appeal had not been refused by the Court a quo before the appellant's application for leave to the SCA. In the circumstances, the SCA did not have jurisdiction to grant leave to appeal against the Court a quo's order to the appellant and the order in terms of which such D leave had been granted to the appellant was a nullity. . . .

Held, accordingly, that the appellant had not obtained leave to appeal from the Court a quo. The result was that the SCA was not competent to hear the appeal against the Court a quo's order and the appeal had to be scrapped from the roll. . . .' [3]

[5] The approach adopted in Khoasasa was approved of in a number of E decisions [4] and in at least one of those decisions [5] the reasoning in Khoasasa has been described as being unassailable.

[6] Khoasasa was decided upon an interpretation of ss 20(1), 20(4) and 21(1) of the Supreme Court Act 59 of 1959. The question that arises is F whether — with the repeal of the Supreme Court Act and its replacement by the Superior Courts Act 10 of 2013, which came into force on 23 August 2013 [6] — the procedure determined in Khoasasa stills holds? In other words: does the applicant still require our leave or must he look elsewhere?

[7] Sections 20(1), 20(4) and 21(1) of the Supreme Court Act provided G as follows:

'Appeals to Supreme Court in general

(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.

H . . .

Vahed J (Koen J concurring)

(4) No appeal shall lie against a judgment or order of the court of a 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)

in the case of a judgment or order given in any civil proceedings by the full court of such a division on appeal to it in terms of subsection (3), with the special leave of the appellate division; B

(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.

Appeals to appellate division

(1) In addition to any jurisdiction conferred upon it by this Act or any other law, the appellate division shall, subject to the provisions of C this section and other law, have jurisdiction to hear and determine an appeal from any decision of the court of a provincial or local division.'

[8] Appeals are now governed by ss 16 and 17 of the Superior Courts Act 10 of 2013. Those sections provide: [7]

'16 Appeals generally D

(1) Subject to section 15(1), the Constitution and any other law —

(a)

an appeal against any decision of a Division as a court of first instance lies, upon leave having been granted —

(i)

if the court consisted of a single judge, either to the Supreme Court of Appeal or to a full court of that Division, depending on the direction issued in terms of section 17(6); or E

(ii)

if the court consisted of more than one judge, to the Supreme Court of Appeal;

(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; and

(c)

an appeal against any decision of a court of a status similar to the F High Court...