S v Abrahams and Another (CA&R 114/03, 51/03) [2005] ZANCHC 63 (4 November 2005)

S v Abrahams and Another (CA&R 114/03, 51/03) [2005] ZANCHC 63 (4 November 2005)

The court held that both appellants were convicted and sentenced prior to 29 May 2001, when sections 309B and 309C of the Criminal Procedure Act were still valid and required leave to appeal for criminal matters. The declaration of invalidity in S v Steyn only took effect from 29 May 2001 and does not apply retrospectively. Since neither appellant applied for leave to appeal in the trial courts nor obtained such leave by petition, their appeals are not properly before the High Court. The court rejected the argument that its inherent review jurisdiction could be used to consider the merits of the appeals in these circumstances. The correct procedure for the appellants is to apply for...

Citation
[2005] ZANCHC 63
Parties
Appellant: Hendrik Abrahams; Appellant: George Booysen; Respondent: The State
Court
Northern Cape High Court, Kimberley
Jurisdiction
South Africa
Judgment Date
4 November 2005
Case Number
CA&R 114/03, 51/03
Procedural Posture
Criminal Appeal / Appeal Against Conviction and Sentence; Preliminary Jurisdictional Determination
Outcome
Both appeals are struck from the roll due to lack of jurisdiction.
Judges
Williams, Tlaletsi
Legal Topics
Leave to Appeal, Condonation, Jurisdiction of High Court, Constitutional Invalidity of Statute
Criminal Law Civil Procedure Leave to Appeal Condonation Jurisdiction of High Court Constitutional Invalidity of Statute

Case Brief

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Parties

Hendrik Abrahams

Appellant

George Booysen

Appellant

The State

Respondent

Procedural Posture

Criminal Appeal / Appeal Against Conviction and Sentence; Preliminary Jurisdictional Determination

Legal Issues

  1. 1 Whether the appeals are properly before the High Court in light of the requirements of sections 309B and 309C of the Criminal Procedure Act 51 of 1977.
  2. 2 Whether the High Court may consider the merits of the appeals in the absence of leave to appeal granted by the trial courts.
  3. 3 Whether the Constitutional Court's declaration of invalidity in S v Steyn applies retrospectively to appeals heard before 29 May 2001.

Ratio Decidendi

The court held that both appellants were convicted and sentenced prior to 29 May 2001, when sections 309B and 309C of the Criminal Procedure Act were still valid and required leave to appeal for criminal matters. The declaration of invalidity in S v Steyn only took effect from 29 May 2001 and does not apply retrospectively. Since neither appellant applied for leave to appeal in the trial courts nor obtained such leave by petition, their appeals are not properly before the High Court. The court rejected the argument that its inherent review jurisdiction could be used to consider the merits of the appeals in these circumstances. The correct procedure for the appellants is to apply for...

Court Disposition

Both appeals are struck from the roll due to lack of jurisdiction.

Orders

  • Both appeals are struck from the roll.
  • Appellants are directed to apply for condonation and leave to appeal in the relevant regional courts if so advised.