Borman v Minister of Defence (A555/02) [2006] ZAWCHC 17; 2007 (2) SA 388 (C) (24 April 2006)

Borman v Minister of Defence (A555/02) [2006] ZAWCHC 17; 2007 (2) SA 388 (C) (24 April 2006)

The High Court does not have jurisdiction to entertain an appeal from the Court of the Senior Military Judge after the matter has been confirmed on automatic review by the Court of Military Appeals. The agreement between the parties and the subsequent court order cannot confer jurisdiction where none exists in law. The appellant did not properly seek review of the conviction and sentence in accordance with the required procedures, and no factual basis for review was established. The High Court's review jurisdiction is limited to inferior courts within its area of jurisdiction and does not extend to the Court of Military Appeals. Accordingly, the appellant's appeal is struck from the roll,...

Citation
[2006] ZAWCHC 17
Parties
Appellant: Clive James Borman; Respondent: Minister of Defence
Court
Western Cape High Court, Cape Town
Jurisdiction
South Africa
Judgment Date
24 April 2006
Case Number
A555/02
Procedural Posture
Civil Appeal / Appeal Against Conviction and Sentence by Military Court; Respondent's Application to Set Aside Leave to Appeal and Notices as Irregular Steps.
Outcome
The appellant's appeal is struck from the roll; the respondent's application to set aside the leave to appeal and related notices is granted; the appellant is directed to report to his commanding officer to serve his sentence.
Judges
D. Van Reenen, J.V. Knoll, B. Waglay
Legal Topics
Military Court Jurisdiction, Right of Appeal, Automatic Review, Review Proceedings, Supreme Court Act, Jurisdictional Limits
Civil Procedure Constitutional Law Military Court Jurisdiction Right of Appeal Automatic Review Review Proceedings Supreme Court Act Jurisdictional Limits

Case Brief

Summary, issues, holding and outcome

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Parties

Clive James Borman

Appellant

Minister of Defence

Respondent

Procedural Posture

Civil Appeal / Appeal Against Conviction and Sentence by Military Court; Respondent's Application to Set Aside Leave to Appeal and Notices as Irregular Steps.

Legal Issues

  1. 1 Does the High Court have jurisdiction to entertain an appeal from the Court of the Senior Military Judge after confirmation by the Court of Military Appeals?
  2. 2 Can parties confer jurisdiction on the High Court by agreement where none exists in law?
  3. 3 Is there a right to review the conviction and sentence imposed by the military court in the High Court, and was such review properly sought in this case?

Ratio Decidendi

The High Court does not have jurisdiction to entertain an appeal from the Court of the Senior Military Judge after the matter has been confirmed on automatic review by the Court of Military Appeals. The agreement between the parties and the subsequent court order cannot confer jurisdiction where none exists in law. The appellant did not properly seek review of the conviction and sentence in accordance with the required procedures, and no factual basis for review was established. The High Court's review jurisdiction is limited to inferior courts within its area of jurisdiction and does not extend to the Court of Military Appeals. Accordingly, the appellant's appeal is struck from the roll,...

Court Disposition

The appellant's appeal is struck from the roll; the respondent's application to set aside the leave to appeal and related notices is granted; the appellant is directed to report to his commanding officer to serve his sentence.

Orders

  • Prayers 1, 2 and 3 of the respondent's application dated 17 September 2002 are granted.
  • The appellant's appeal is struck from the roll.