Nkabinde and Others v S (A256/14) [2015] ZAFSHC 219 (5 November 2015)

Nkabinde and Others v S (A256/14) [2015] ZAFSHC 219 (5 November 2015)

The court held that the trial judge's directive to refer the appeal on special entries to a full bench of the High Court was incompetent and contrary to the express provisions of the Criminal Procedure Act. Section 318(1) provides that appeals based on special entries must be heard by the Supreme Court of Appeal, not by a full bench of the High Court. The trial judge should have considered each proposed special entry individually and only granted those that met the statutory requirements. The accused's right to appeal is not prejudiced by the removal of the matter from the roll, as they retain the right to prosecute their appeal before the Supreme Court of Appeal. The court has no...

Citation
[2015] ZAFSHC 219
Parties
Appellant: Khetani Mbuyise Nkabinde; Appellant: Orapeleng Lawrence Mogoje; Appellant: Ubrey Mmushi Dikobe; Appellant: Jabulane Elliot Papie Makhene; Respondent: The State
Court
Free State High Court, Bloemfontein
Jurisdiction
South Africa
Judgment Date
5 November 2015
Case Number
A256/14
Procedural Posture
Criminal Appeal / Appeal Before Full Bench on Special Entries; Jurisdictional Challenge
Outcome
Appeal removed from the roll due to lack of jurisdiction; accused to prosecute appeal in accordance with statutory procedure.
Judges
CJ Musi, S Naidoo, C Reinders
Legal Topics
Special Entry Procedure, Jurisdiction of High Court, Irregularity in Trial, Leave to Appeal, Section 317 Criminal Procedure Act
Criminal Law Civil Procedure Special Entry Procedure Jurisdiction of High Court Irregularity in Trial Leave to Appeal Section 317 Criminal Procedure Act

Case Brief

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Parties

Khetani Mbuyise Nkabinde

Appellant

Orapeleng Lawrence Mogoje

Appellant

Ubrey Mmushi Dikobe

Appellant

Jabulane Elliot Papie Makhene

Appellant

The State

Respondent

Procedural Posture

Criminal Appeal / Appeal Before Full Bench on Special Entries; Jurisdictional Challenge

Legal Issues

  1. 1 Whether the trial judge was competent to direct that the appeal on special entries be heard by a full bench of the High Court.
  2. 2 Whether the special entries made by the trial judge complied with the requirements of section 317 of the Criminal Procedure Act.
  3. 3 Whether the accused's right to appeal would be prejudiced if the matter was removed from the roll.

Ratio Decidendi

The court held that the trial judge's directive to refer the appeal on special entries to a full bench of the High Court was incompetent and contrary to the express provisions of the Criminal Procedure Act. Section 318(1) provides that appeals based on special entries must be heard by the Supreme Court of Appeal, not by a full bench of the High Court. The trial judge should have considered each proposed special entry individually and only granted those that met the statutory requirements. The accused's right to appeal is not prejudiced by the removal of the matter from the roll, as they retain the right to prosecute their appeal before the Supreme Court of Appeal. The court has no...

Court Disposition

Appeal removed from the roll due to lack of jurisdiction; accused to prosecute appeal in accordance with statutory procedure.

Orders

  • The appeal is removed from the roll.