Nkosi v S (470/2012) [2013] ZASCA 32 (27 March 2013)
- Citation
- [2013] ZASCA 32
- Status
- Judgment
- Jurisdiction
- South Africa
- Court
- Supreme Court of Appeal
- Panel
- Cachalia, Malan, Theron, Schoeman, Plasket
- Case number
- 470/2012
More details
- Court
- Supreme Court of Appeal
- Panel
- Cachalia, Malan, Theron, Schoeman, Plasket
- Case number
- 470/2012
On this page
Professional case brief
Research organized from the available case record
01
Holding and result
The Supreme Court of Appeal found that, although it had initially granted an order upholding the appeal and substituting new convictions and sentences, it was subsequently informed that the appellant had died before the appeal was heard. In accordance with established legal principle, the court held that it lacked jurisdiction to entertain the appeal after the appellant's death. Consequently, the previous order was recalled and the matter was struck off the roll.
Court disposition
Appeal struck off the roll due to lack of jurisdiction following the appellant's death.
Orders
- The order granted by this court on 15 March 2013 is recalled.
- The matter is struck off the roll.
02
Material facts
Parties
Themba Aaron Nkosi
Appellant Counsel: MK SteenekampThe State
Respondent Counsel: GD Baloyi03
Procedural history
Posture
Criminal Appeal / Appeal Before Supreme Court of Appeal
04
Questions and positions
Legal issues
- 01
Does the court have jurisdiction to hear an appeal when the appellant has died before the appeal is heard?
- 02
What is the effect of the appellant's death on the orders previously granted by the court?
Party arguments
- Applicant
- Counsel for the appellant argued for the setting aside of the convictions and sentences, and for the appellant's immediate release from prison, based on the merits of the appeal.
- Respondent
- Counsel for the respondent opposed the appeal, seeking to uphold the convictions and sentences imposed by the trial court.
05
Court’s reasoning
Legal principles
- 01
S v January; Prokureur-Generaal, Natal v Khumalo 1994 (2) SACR 801 (A) at 809g-h
A court loses jurisdiction to hear an appeal if the appellant dies before the appeal is heard.
06
Ratio, limits and disposition
Ratio decidendi
The Supreme Court of Appeal found that, although it had initially granted an order upholding the appeal and substituting new convictions and sentences, it was subsequently informed that the appellant had died before the appeal was heard. In accordance with established legal principle, the court held that it lacked jurisdiction to entertain the appeal after the appellant's death. Consequently, the previous order was recalled and the matter was struck off the roll.
Obiter and limits
- The court noted that its initial inclination was to interfere with the convictions and sentences and to order the appellant's immediate release, but this became moot upon learning of the appellant's death.
- The principle that a court loses jurisdiction over an appeal upon the death of the appellant is well established in South African law.
Court disposition
Appeal struck off the roll due to lack of jurisdiction following the appellant's death.
- The order granted by this court on 15 March 2013 is recalled.
- The matter is struck off the roll.
Source and reliance status
Supreme Court of Appeal
This page organises the available record for research. Confirm quotations, current status, and subsequent treatment against the official source before relying on the case.
Judgment reading view
Judgment text
The complete available source text.
Supreme Court of Appeal
Judgment
THE SUPREME COURT
OF APPEAL OF SOUTH AFRICA
JUDGMENT
Case no: 470/2012
Not Reportable
In the matter between:
THEMBA AARON
NKOSI ....................................................................Appellant
and
THE STATE ..........................................................................................Respondent
Neutral citation: Nkosi v The State (470/2012) [2013] ZASCA 32 (27 March 2013)
Coram: CACHALIA, MALAN and THERON JJA and SCHOEMAN and PLASKET AJJA
Heard: 15 March 2013
Delivered 27 March 2013
Summary: Criminal procedure – appeal – appellant dying before appeal heard – appeal struck off the roll.
________________
ORDER
On appeal from: North Gauteng High Court, Pretoria (Mynhardt, Basson and Mavundla JJ sitting as a court of appeal):
(a) The order granted by this court on 15 March 2013 is recalled.
(b) The matter is struck off the roll.
THERON JA (CACHALIA and MALAN JJA and SCHOEMAN and PLASKET AJJA concurring):
[1] The appellant stood trial in the North Gauteng High Court sitting at Ermelo on two counts of murder and one count of housebreaking with intent to commit robbery with aggravating circumstances. The appellant pleaded not guilty but was convicted on all three counts on 30 January 1998 and sentenced to an effective term of imprisonment of sixty years. The appellant’s appeal to the high court was dismissed. The appellant appealed to this court against his convictions and sentences with the appropriate leave.
[2] At the hearing of the appeal and after having heard counsel representing both parties, the court was of the view that it ought to interfere with the convictions and sentences imposed and that it was in the interests of justice that it direct that the appellant be released from prison immediately. In the circumstances, the following order was granted:
‘The appeal against the convictions and sentences is upheld. The order of the court below is set aside and the following order substituted:
“1. The appeal against the convictions on two counts of murder and one of housebreaking with intent to commit robbery and robbery with aggravating circumstances is upheld. The convictions and sentences on these counts in the high court are set aside.
2. The appellant is found guilty as an accessory after the fact to the murders of Herman Segemendes Mosenthal Schultz and his wife, Susara Maria Schultz.
3. The appellant is found guilty on the competent verdict of theft for count 3.
4. The appellant is sentenced to five years’ imprisonment as an accessory after the fact to murder, and to two years’ imprisonment for theft. It is ordered that the sentence on the theft count is to run concurrently with the sentence for the conviction as an accessory after the fact to murder. The sentences are ante-dated to 30 January 1998.
5. It is ordered that the appellant, who commenced serving his sentence on 30 January 1998, be released forthwith.”’
[3] It was subsequently brought to our attention that the appellant had passed away during November 2012. This court thus had no jurisdiction to deal with the appeal.1
[4] The following order is made:
______
L V THERON
JUDGE OF APPEAL
APPEARANCES
For Appellant: MK Steenekamp
Instructed by:
Legal Aid SA, Pretoria
Legal Aid SA, Bloemfontein
For Respondent: GD Baloyi
Director of Public Prosecutions, Pretoria
Director of Public Prosecutions, Bloemfontein
1S v January; Prokureur-Generaal, Natal v Khumalo 1994 (2) SACR 801 (A) at 809g-h.
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