Miyeni v S (P195/10) [2015] ZAGPJHC 336 (7 March 2015)
- Citation
- [2015] ZAGPJHC 336
- Status
- Judgment
- Jurisdiction
- South Africa
- Court
- South Gauteng High Court, Johannesburg
- Panel
- M Victor, B.S Spilg
- Case number
- P195/10
More details
- Court
- South Gauteng High Court, Johannesburg
- Panel
- M Victor, B.S Spilg
- Case number
- P195/10
On this page
Professional case brief
Research organized from the available case record
01
Holding and result
The High Court no longer has jurisdiction to entertain an application for leave to appeal against the refusal of a petition, as the procedure has been superseded by the Superior Courts Act 10 of 2013. Section 16(1)(b) of the Act makes it clear that the applicant's remedy is to approach the Supreme Court of Appeal for special leave to appeal. The previous procedure under the Supreme Court Act 59 of 1959 is no longer applicable. Accordingly, the application before the High Court must fail for want of jurisdiction.
Court disposition
Application dismissed for lack of jurisdiction.
Orders
- The appellant is directed to approach the Supreme Court of Appeal for leave to appeal the refusal of the petition.
02
Material facts
Parties
Miyeni Tshepo Hope
ApplicantThe State
Respondent03
Procedural history
Posture
Leave to Appeal / Application for Leave to Appeal Against Refusal of Petition
04
Questions and positions
Legal issues
- 01
Does the High Court have jurisdiction to grant leave to appeal against the refusal of a petition under the current statutory framework?
- 02
What is the correct procedure for an applicant seeking leave to appeal after a petition has been refused?
Party arguments
- Applicant
- The applicant contends that, following the refusal of his petition for leave to appeal, he is entitled to approach the High Court for leave to appeal against that refusal, relying on the procedure previously accepted under the Supreme Court Act 59 of 1959.
- Respondent
- The respondent maintains that the Superior Courts Act 10 of 2013 has altered the procedure, and the High Court no longer has jurisdiction to entertain such applications. The applicant must seek special leave to appeal from the Supreme Court of Appeal.
05
Court’s reasoning
Legal principles
- 01
Supreme Court Act 59 of 1959
Under the Supreme Court Act 59 of 1959, an applicant could approach the High Court for leave to appeal against the refusal of a petition.
- 02
Superior Courts Act 10 of 2013
Section 16(1)(b) of the Superior Courts Act 10 of 2013 provides that an appeal against any decision of a Division on appeal to it lies to the Supreme Court of Appeal upon special leave granted by the Supreme Court of Appeal.
06
Ratio, limits and disposition
Ratio decidendi
The High Court no longer has jurisdiction to entertain an application for leave to appeal against the refusal of a petition, as the procedure has been superseded by the Superior Courts Act 10 of 2013. Section 16(1)(b) of the Act makes it clear that the applicant's remedy is to approach the Supreme Court of Appeal for special leave to appeal. The previous procedure under the Supreme Court Act 59 of 1959 is no longer applicable. Accordingly, the application before the High Court must fail for want of jurisdiction.
Obiter and limits
- The transition from the Supreme Court Act to the Superior Courts Act has fundamentally changed the appellate procedure in such matters.
- Applicants must be aware of the current statutory requirements to avoid procedural missteps.
Court disposition
Application dismissed for lack of jurisdiction.
- The appellant is directed to approach the Supreme Court of Appeal for leave to appeal the refusal of the petition.
Source and reliance status
South Gauteng High Court, Johannesburg
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Judgment reading view
Judgment text
The complete available source text.
South Gauteng High Court, Johannesburg
Judgment
REPUBLIC
OF SOUTH AFRICA
IN THE HIGH COURT OF SOUTH AFRICA
GAUTENG LOCAL DIVISION,
JOHANNESBURG
CASE NO: P195/10
In the matter between:
MIYENI TSHEPO HOPE Applicant
and
THE STATE Respondent
JUDGMENT
VICTOR J:
[1] The Applicant was convicted and sentenced by the Regional Magistrate, sitting at Wynberg.
[2] He applied for leave to appeal against conviction and sentence which was refused.
[3] He then petitioned to the Judge President of this Division for leave to appeal and which petition was refused.
[4] He has now brought an application for Leave to Appeal against the refusal of his petition. In the past the procedure followed by the Applicant was correct and accepted procedure.
[5] Previously, in terms of Section 20 (4) (b) of The Supreme Court Act 59 of 1959, in cases where a petition was refused (as in this case), an applicant had the right to approach the High Court for Leave to Appeal against the refusal of his petition – the procedure followed in this instance. In the light of the Superior Courts Act 10 of 2013 this court no longer has jurisdiction to deal with an application of this nature.
[6] Section 16 (1) (b) of the Superior Courts Act reads ‘Subject to section 15(1), the Constitution and any other law -… an appeal against any decision of a Division on appeal to it, lies to the Supreme Court of Appeal upon special leave having being granted by the Supreme Court of Appeal’.
[7] I conclude that we do not have jurisdiction to grant the relief sought. The applicants remedy is to approach the SCA under Section (16)(1)(b) of the Superior Courts Act for special leave to appeal to it.
ORDER
[8] The appellant is directed to approach the Supreme Court of Appeal for leave to appeal the refusal of the petition.
_____
M VICTOR
JUDGE OF THE SOUTH GAUTENG
HIGH COURT, JOHANNESBURG
B.S SPILG
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