S v Bopalamo (A818/05 , 818/05) [2006] ZAGPHC 49 (17 May 2006)

S v Bopalamo (A818/05 , 818/05) [2006] ZAGPHC 49 (17 May 2006)

The court found that both the refusal of a certificate by Schabort J and the order by Willis J granting leave to appeal were nullities due to lack of jurisdiction. Section 305 of the Criminal Procedure Act did not apply to High Court convictions, and only the trial judge, or another judge if the trial judge is unavailable, may hear an application for leave to appeal. Given the systemic failures and the absence of opposition from the State, the court condoned the lateness of the application and referred the matter for proper adjudication in open court.

Citation
[2006] ZAGPHC 49
Parties
Appellant: Bopalamo, Brian; Respondent: The State
Court
High Courts - Gauteng
Jurisdiction
South Africa
Judgment Date
17 May 2006
Case Number
A818/05
Procedural Posture
Criminal Appeal / Application for Leave to Appeal
Outcome
The refusal of certificate by Schabort J and the order by Willis J are declared null and void. The appellant's application for leave to appeal is referred for adjudication to the trial judge or another judge if unavailable. The lateness of the application is condoned.
Judges
E L Goldstein, V Khampepe, R S Mathopo
Legal Topics
Leave to Appeal, Jurisdiction of High Court, Condonation of Late Application
Criminal Law Civil Procedure Leave to Appeal Jurisdiction of High Court Condonation of Late Application

Case Brief

Summary, issues, holding and outcome

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Parties

Bopalamo, Brian

Appellant

The State

Respondent

Procedural Posture

Criminal Appeal / Application for Leave to Appeal

Legal Issues

  1. 1 Whether the refusal of a certificate by Schabort J was valid and within jurisdiction.
  2. 2 Whether Willis J had jurisdiction to grant leave to appeal.
  3. 3 Whether the lateness in the application for leave to appeal should be condoned.

Ratio Decidendi

The court found that both the refusal of a certificate by Schabort J and the order by Willis J granting leave to appeal were nullities due to lack of jurisdiction. Section 305 of the Criminal Procedure Act did not apply to High Court convictions, and only the trial judge, or another judge if the trial judge is unavailable, may hear an application for leave to appeal. Given the systemic failures and the absence of opposition from the State, the court condoned the lateness of the application and referred the matter for proper adjudication in open court.

Court Disposition

The refusal of certificate by Schabort J and the order by Willis J are declared null and void. The appellant's application for leave to appeal is referred for adjudication to the trial judge or another judge if unavailable. The lateness of the application is condoned.

Orders

  • The refusal of certificate of Schabort J of 17 September 1996 is declared null and void.
  • The order of Willis J of 28 November 2003 is declared null and void.