Mnisi v S (A107/2010) [2010] ZAGPPHC 225 (9 December 2010)

Mnisi v S (A107/2010) [2010] ZAGPPHC 225 (9 December 2010)

The High Court held that after it had decided the appeal against conviction and sentence, it became functus officio and could not entertain a further application for leave to appeal to the Supreme Court of Appeal. The applicant's attempt to apply for leave to appeal by notice of motion in the High Court was procedurally improper. The correct procedure is to petition the Judge President of the Supreme Court of Appeal in terms of the relevant rules. Accordingly, the application was struck from the roll.

Citation
[2010] ZAGPPHC 225
Parties
Applicant: Mnisi, Mthobiai Charles; Respondent: The State
Court
North Gauteng High Court, Pretoria
Jurisdiction
South Africa
Judgment Date
9 December 2010
Case Number
A107/2010
Procedural Posture
Leave to Appeal / Application for Leave to Appeal to the Supreme Court of Appeal After Conviction and Sentence Appeal
Outcome
Application for leave to appeal struck from the roll.
Judges
Ebersohn, Kollapen
Legal Topics
Leave to Appeal Procedure, Rape Conviction, Functus Officio, Petition to Supreme Court of Appeal
Criminal Law Leave to Appeal Procedure Rape Conviction Functus Officio Petition to Supreme Court of Appeal

Case Brief

Summary, issues, holding and outcome

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Parties

Mnisi, Mthobiai Charles

Applicant

The State

Respondent

Procedural Posture

Leave to Appeal / Application for Leave to Appeal to the Supreme Court of Appeal After Conviction and Sentence Appeal

Legal Issues

  1. 1 Whether the applicant may apply to the High Court for leave to appeal to the Supreme Court of Appeal after the High Court has already decided the appeal.
  2. 2 Whether the High Court is functus officio after deciding the appeal.
  3. 3 What is the correct procedure for seeking leave to appeal to the Supreme Court of Appeal.

Ratio Decidendi

The High Court held that after it had decided the appeal against conviction and sentence, it became functus officio and could not entertain a further application for leave to appeal to the Supreme Court of Appeal. The applicant's attempt to apply for leave to appeal by notice of motion in the High Court was procedurally improper. The correct procedure is to petition the Judge President of the Supreme Court of Appeal in terms of the relevant rules. Accordingly, the application was struck from the roll.

Court Disposition

Application for leave to appeal struck from the roll.

Orders

  • The application is struck from the roll.