Khauli and Another v S (A1010/2008) [2010] ZAGPPHC 233 (10 December 2010)

Khauli and Another v S (A1010/2008) [2010] ZAGPPHC 233 (10 December 2010)

The High Court was functus officio after refusing leave to appeal, and Shongwe DJP had no power to entertain a second application for leave to appeal. The proper procedure was for the appellant to petition the President of the Supreme Court of Appeal. As the appeal was not properly before the court, the matter could not be heard and was struck from the roll. The second appellant did not independently seek leave to appeal, and no order regarding his right to appeal could be made.

Citation
[2010] ZAGPPHC 233
Parties
Appellant: Peter Makunye Khauli; Appellant: Phillip Moeketsi Khauli; Respondent: The State
Court
North Gauteng High Court, Pretoria
Jurisdiction
South Africa
Judgment Date
10 December 2010
Case Number
A1010/2008
Procedural Posture
Leave to Appeal / Full Bench Appeal; Application for Leave to Appeal After Prior Refusal
Outcome
Appeal struck from the roll; no order made regarding the second appellant's right to appeal.
Judges
Webster, Ranchod, Pakati
Legal Topics
Leave to Appeal Procedure, Functus Officio, Jurisdiction of High Court
Criminal Law Civil Procedure Leave to Appeal Procedure Functus Officio Jurisdiction of High Court

Case Brief

Summary, issues, holding and outcome

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Parties

Peter Makunye Khauli

Appellant

Phillip Moeketsi Khauli

Appellant

The State

Respondent

Procedural Posture

Leave to Appeal / Full Bench Appeal; Application for Leave to Appeal After Prior Refusal

Legal Issues

  1. 1 Whether the High Court was competent to entertain a second application for leave to appeal after the trial court had refused leave.
  2. 2 Whether the High Court was functus officio after refusing leave to appeal.
  3. 3 Whether the appeal was properly before the court.

Ratio Decidendi

The High Court was functus officio after refusing leave to appeal, and Shongwe DJP had no power to entertain a second application for leave to appeal. The proper procedure was for the appellant to petition the President of the Supreme Court of Appeal. As the appeal was not properly before the court, the matter could not be heard and was struck from the roll. The second appellant did not independently seek leave to appeal, and no order regarding his right to appeal could be made.

Court Disposition

Appeal struck from the roll; no order made regarding the second appellant's right to appeal.

Orders

  • The appeal is struck from the roll.