Carneiro v S (1040/2016) [2017] ZASCA 154; 2018 (1) SACR 197 (SCA) (24 November 2017)

Carneiro v S (1040/2016) [2017] ZASCA 154; 2018 (1) SACR 197 (SCA) (24 November 2017)

The Supreme Court of Appeal held that the application for leave to appeal, which was pending at the time of the promulgation of the Superior Courts Act 10 of 2013, must be governed by the Supreme Court Act 59 of 1959. The new Act is not purely procedural but also affects substantive rights by imposing a higher threshold for leave to appeal. The court found that the principle of non-retrospectivity applies, and the appellant's existing rights under the old Act cannot be prejudiced by the new Act. The high court erred in applying the new Act and striking the application off the roll. The matter must be referred back to the high court to be dealt with under the old Act.

Citation
[2017] ZASCA 154
Parties
Appellant: Jose Pedro Morais Carneiro; Respondent: The State
Court
Supreme Court of Appeal
Jurisdiction
South Africa
Judgment Date
24 November 2017
Case Number
1040/2016
Procedural Posture
Criminal Appeal / Appeal From Gauteng Local Division, Johannesburg; Application for Leave to Appeal Against Striking Off Order
Outcome
Appeal succeeds; high court's order striking off the matter from the roll is set aside; matter referred back to high court to be dealt with under the Supreme Court Act 59 of 1959.
Judges
Shongwe, Tshiqi, Majiedt, Mocumie, Tsoka
Legal Topics
Leave to Appeal, Retrospective Application of Statutes, Superior Courts Act, Supreme Court Act, Threshold for Leave to Appeal
Criminal Law Civil Procedure Leave to Appeal Retrospective Application of Statutes Superior Courts Act Supreme Court Act Threshold for Leave to Appeal

Case Brief

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Parties

Jose Pedro Morais Carneiro

Appellant

The State

Respondent

Procedural Posture

Criminal Appeal / Appeal From Gauteng Local Division, Johannesburg; Application for Leave to Appeal Against Striking Off Order

Legal Issues

  1. 1 Whether the application for leave to appeal is governed by the Supreme Court Act 59 of 1959 or the Superior Courts Act 10 of 2013.
  2. 2 Whether the new Act applies retrospectively to applications pending at the time of its promulgation.
  3. 3 Whether the appellant's rights are prejudiced by the application of the new Act's higher threshold for leave to appeal.

Ratio Decidendi

The Supreme Court of Appeal held that the application for leave to appeal, which was pending at the time of the promulgation of the Superior Courts Act 10 of 2013, must be governed by the Supreme Court Act 59 of 1959. The new Act is not purely procedural but also affects substantive rights by imposing a higher threshold for leave to appeal. The court found that the principle of non-retrospectivity applies, and the appellant's existing rights under the old Act cannot be prejudiced by the new Act. The high court erred in applying the new Act and striking the application off the roll. The matter must be referred back to the high court to be dealt with under the old Act.

Court Disposition

Appeal succeeds; high court's order striking off the matter from the roll is set aside; matter referred back to high court to be dealt with under the Supreme Court Act 59 of 1959.

Orders

  • The appeal succeeds.
  • The high court’s order striking off the matter from the roll is set aside.