Gardiner v S (A243/09) [2009] ZAGPJHC 48 (10 September 2009)

Gardiner v S (A243/09) [2009] ZAGPJHC 48 (10 September 2009)

The Full Bench held that Willis J was not competent to grant leave to appeal to the Full Bench against conviction after the petition procedure under section 309C of the Criminal Procedure Act had been exhausted. The correct procedure, as established by statute and case law, is to petition the President of the Supreme Court of Appeal for leave to appeal. The order granting leave to appeal was therefore a nullity and did not confer jurisdiction on the Full Bench to hear the appeal. As a result, there was no proper appeal before the court, and the matter had to be struck off the roll.

Citation
[2009] ZAGPJHC 48
Parties
Appellant: Richard James Gardiner; Respondent: The State
Court
South Gauteng High Court, Johannesburg
Jurisdiction
South Africa
Judgment Date
10 September 2009
Case Number
A243/09
Procedural Posture
Criminal Appeal / Full Bench Appeal on Leave to Appeal Against Conviction
Outcome
Appeal struck off the roll due to lack of jurisdiction.
Judges
M P Tsoka, F H D van Oosten, M Jajbhay
Legal Topics
Leave to Appeal, Jurisdiction of High Court, Petition Procedure, Supreme Court Act, Criminal Conviction Appeal
Criminal Law Civil Procedure Leave to Appeal Jurisdiction of High Court Petition Procedure Supreme Court Act Criminal Conviction Appeal

Case Brief

Summary, issues, holding and outcome

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Parties

Richard James Gardiner

Appellant

The State

Respondent

Procedural Posture

Criminal Appeal / Full Bench Appeal on Leave to Appeal Against Conviction

Legal Issues

  1. 1 Whether Willis J was competent to grant the appellant leave to appeal to the Full Bench against conviction.
  2. 2 Whether the order granting leave to appeal is valid and confers jurisdiction on the Full Bench.
  3. 3 What is the correct procedure when leave to appeal is refused by the trial court and by petition to the Judge President.

Ratio Decidendi

The Full Bench held that Willis J was not competent to grant leave to appeal to the Full Bench against conviction after the petition procedure under section 309C of the Criminal Procedure Act had been exhausted. The correct procedure, as established by statute and case law, is to petition the President of the Supreme Court of Appeal for leave to appeal. The order granting leave to appeal was therefore a nullity and did not confer jurisdiction on the Full Bench to hear the appeal. As a result, there was no proper appeal before the court, and the matter had to be struck off the roll.

Court Disposition

Appeal struck off the roll due to lack of jurisdiction.

Orders

  • The appeal is struck off the roll.