Liesching and Others v S and Another (CCT245/15) [2016] ZACC 41; 2017 (4) BCLR 454 (CC); 2017 (2) SACR 193 (CC) (15 November 2016)

Liesching and Others v S and Another (CCT245/15) [2016] ZACC 41; 2017 (4) BCLR 454 (CC); 2017 (2) SACR 193 (CC) (15 November 2016)

The Constitutional Court held that the definition of 'appeal' in section 1 of the Superior Courts Act does not exclude all criminal matters from the scope of Chapter 5. Section 17(2)(f) applies to both civil and criminal proceedings, allowing the President of the Supreme Court of Appeal to refer a petition for reconsideration in exceptional circumstances. The procedure under section 327 of the Criminal Procedure Act is not an appeal and only applies after all recognised appeal procedures are exhausted. The President's interpretation, which excluded criminal matters from section 17(2)(f), created an anomaly and violated the applicants' right to equal treatment before the law. The matter...

Citation
[2016] ZACC 41
Parties
Applicant: Pieter Pietertjie Liesching; Applicant: Malvin Naas Swartz; Applicant: Xavier Malgas; Respondent: The State; Respondent: Minister of Justice and Correctional Services
Court
Constitutional Court
Jurisdiction
South Africa
Judgment Date
15 November 2016
Case Number
CCT 245/15
Procedural Posture
Leave to Appeal / Appeal From Supreme Court of Appeal; Application for Reconsideration Under Section 17(2)(f) of the Superior Courts Act
Outcome
Appeal upheld; matter remitted to the President of the Supreme Court of Appeal for reconsideration.
Judges
Mogoeng, Nkabinde, Froneman, Jafta, Khampepe, Madlanga, Mbha, Mhlantla, Musi, Zondo
Legal Topics
Superior Courts Act Section 17 2 F, Criminal Appeal Procedure, Adducing Further Evidence, Bill of Rights Interpretation, Equality Before Law, Fair Trial Rights
Criminal Law Civil Procedure Constitutional Law Superior Courts Act Section 17 2 F Criminal Appeal Procedure Adducing Further Evidence Bill of Rights Interpretation Equality Before Law +1 more

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Parties

Pieter Pietertjie Liesching

Applicant

Malvin Naas Swartz

Applicant

Xavier Malgas

Applicant

The State

Respondent

Minister of Justice and Correctional Services

Respondent

Procedural Posture

Leave to Appeal / Appeal From Supreme Court of Appeal; Application for Reconsideration Under Section 17(2)(f) of the Superior Courts Act

Legal Issues

  1. 1 Does the definition of 'appeal' in section 1 of the Superior Courts Act exclude all criminal matters from Chapter 5 of the Act?
  2. 2 Does section 17(2)(f) of the Superior Courts Act apply to criminal proceedings?
  3. 3 Is the section 327 procedure under the Criminal Procedure Act an appeal regulated in terms of the CPA or any other criminal procedural law?

Ratio Decidendi

The Constitutional Court held that the definition of 'appeal' in section 1 of the Superior Courts Act does not exclude all criminal matters from the scope of Chapter 5. Section 17(2)(f) applies to both civil and criminal proceedings, allowing the President of the Supreme Court of Appeal to refer a petition for reconsideration in exceptional circumstances. The procedure under section 327 of the Criminal Procedure Act is not an appeal and only applies after all recognised appeal procedures are exhausted. The President's interpretation, which excluded criminal matters from section 17(2)(f), created an anomaly and violated the applicants' right to equal treatment before the law. The matter...

Court Disposition

Appeal upheld; matter remitted to the President of the Supreme Court of Appeal for reconsideration.

Orders

  • Condonation is granted.
  • Leave to appeal is granted.