S v Nocuse and Others

• Jurisdiction: South Africa
• Citation: 1995 (3) SA 240 (Tk)

S v Nocuse and Others
1995 (3) SA 240 (Tk) [*]

1995 (3) SA p240

Citation	1995 (3) SA 240 (Tk)
Case No	82/94
Court	Transkei General Division
Judge	White J
Heard	February 21, 1995
Judgment	March 14, 1995

Flynote : Sleutelwoorde E

Constitutional practice — Courts — Jurisdiction — Supreme Court of Transkei — Full Court appellate jurisdiction — Provisions of s 241(1A)(b) of Constitution of the Republic of South Africa Act 200 of 1993 vesting C Transkei Supreme Court with jurisdiction similar to that of Provincial and Local Divisions of Supreme Court of South Africa — Full Court of appeal now an integral part of Transkei Supreme Court — In granting leave to appeal, order can be made directing appeal to be heard by either Appellate Division of Supreme Court of South Africa or by Full Bench of Transkei D Supreme Court.

Criminal procedure — Appeal — Leave to appeal — When necessary — Conviction in Supreme Court of Transkei — Effect of s 241(1A)(b) of Constitution of the Republic of South Africa Act 200 of 1993 — Jurisdiction of Transkei Supreme Court similar to that of a Provincial or E Local Division of Supreme Court of South Africa — A Full Court of appeal now an integral part of Supreme Court of Transkei — Single Judge in a criminal case can, after granting an accused leave to appeal, order that the appeal be heard by the Appellate Division or by the Full Bench of the Transkei Supreme Court — Requirement that before an accused person can F appeal he must have reasonable prospects of success on appeal a reasonable limitation on an accused's right of appeal as provided for by s 25(3)(h) of Constitution Act — Such requirement fully justifiable, not negating essential content of such right and is necessary.

Constitutional law — Human rights — Right to a fair trial and to right to G appeal in terms of s 25(3)(h) in chap 3 of Constitution of the Republic of South Africa Act 200 of 1993 — Right of appeal from conviction or sentence in Supreme Court — Whether requirement that leave to appeal be obtained a justifiable limitation as intended in s 33 of Constitution — Such H requirement fully justifiable, not negating essential content of such right and is necessary.

Headnote : Kopnota

Since the coming into operation of the amendment to s 241 of the Constitution of the Republic of South Africa Act 200 of 1993, effected by s 15 of the Constitution of the Republic of South Africa Third Amendment Act 13 of 1994, the jurisdiction of the Transkei Supreme Court is, in I terms of s 241(1A)(b) of the Constitution, similar to that of a Provincial or Local Division of the Supreme Court of South Africa. (At 244G-G/H.) A Full Court of appeal is now an integral part of the Supreme Court of Transkei. A single Judge in a criminal case can, after granting an accused leave to appeal, order that the appeal be heard by the Appellate Division or by a Full Bench of the Transkei Supreme Court. (At 244I-J.) J

1995 (3) SA p241

A The requirement that before an accused can appeal he must have reasonable prospects of success on appeal is a reasonable limitation, as intended in s 33 of the Constitution Act, on an accused person's right of appeal as provided for by s 25(3)(h) of the Constitution Act. It clearly only precludes hopeless appeals, which will in any event be dismissed by the Court of appeal. Such requirement is also fully justifiable in that if every accused who had been convicted and sentenced were allowed an absolute right of appeal, the appeal Courts would be inundated with appeals and would clearly be incapable of carrying out their duties B effectively. The requirement does not negate the essential content of the right to appeal as deserving cases will not be denied the right of appeal. The underlying principle behind s 25(3)(h) appears to be that an accused must be afforded every possibility of proving his innocence. This principle is not negated by requiring that an accused, who has had a fair trial, satisfy the Court that he has a reasonable prospect of success on appeal before being allowed to proceed to a higher Court. Furthermore, C the requirement is, for the aforementioned reasons, also necessary. (At 245D/E-246B, in summary.)

Case Information

Application for leave to appeal. The facts appear from the reasons for judgment.

A Z Gaju for first, third and fourth applicants.

L P Pakade for second applicant. D

Cur adv vult.

Postea (March 14).

Judgment

E White J:

Five accused were charged with having wrongfully killed and murdered the deceased, Mlungisi Dabula (count 1), and with having attempted to kill and murder the deceased's wife, Vuyokazi Dabula (count 2) and his three-year-old daughter, Andiswa (count 3). The first accused was acquitted on all three counts. The second to fifth accused were F convicted of culpable homicide on count 1 and of assault with intent to do grievous bodily harm on count 2. They were acquitted on count 3. Each was sentenced, both counts being treated as one for that purpose, to R1 000 or two months' imprisonment of which R500 or one month's imprisonment was suspended for five years on condition the accused is not convicted of any offence of which violence is an element, committed during that period. G The second to fifth accused now apply for leave to appeal against their convictions and sentences. I shall in this judgment, for the sake of convenience, continue to refer to the four applicants as the second, third, fourth and fifth accused.

The facts of the case are both bizarre and tragic. When the police were H informed that the deceased, an insurance agent, was conveying the dead body of a child in his motor car (which was in fact Andiswa, who was sleeping on the back seat), they pursued it in a police van. The first accused, a policeman, was...