S v Hlongwa (69/91,70/91) [1993] ZASCA 81 (28 May 1993)

S v Hlongwa (69/91,70/91) [1993] ZASCA 81 (28 May 1993)

The Supreme Court of Appeal held that the failure of the appellants' counsel to appear was not attributable to the appellants themselves, but rather to the omission of their Bethal attorneys. The court considered the merits of the appeal and found that there were reasonable prospects of success, at least partially, for both appellants. In light of these factors, the court determined that it would not be appropriate to dismiss the appeals outright for non-prosecution. Instead, the appeals were struck off the roll, leaving the door open for the appellants to apply for reinstatement of their appeals.

Citation
[1993] ZASCA 81
Parties
Appellant: Tembinkosi Meshack Hlongwa; Appellant: Thabu Joseph Mokoena; Respondent: The State
Court
Supreme Court of Appeal
Jurisdiction
South Africa
Judgment Date
28 May 1993
Case Number
69/91,70/91
Procedural Posture
Criminal Appeal / Appeal Hearing Before Supreme Court of Appeal
Outcome
Both appeals were struck off the roll, with leave for the appellants to apply for reinstatement.
Judges
E.M. Grosskopf, Eksteen, Van Coller
Legal Topics
Non Appearance of Counsel, Dismissal for Non Prosecution, Condonation of Non Compliance, Prospects of Success
Criminal Law Civil Procedure Non Appearance of Counsel Dismissal for Non Prosecution Condonation of Non Compliance Prospects of Success

Case Brief

Summary, issues, holding and outcome

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Parties

Tembinkosi Meshack Hlongwa

Appellant

Thabu Joseph Mokoena

Appellant

The State

Respondent

Procedural Posture

Criminal Appeal / Appeal Hearing Before Supreme Court of Appeal

Legal Issues

  1. 1 Whether the appeal should be dismissed for non-appearance of counsel under Rule 7(3).
  2. 2 Whether the failure to appear was attributable to the appellants or their legal representatives.
  3. 3 Whether the merits of the appeal justify condonation or striking off rather than outright dismissal.

Ratio Decidendi

The Supreme Court of Appeal held that the failure of the appellants' counsel to appear was not attributable to the appellants themselves, but rather to the omission of their Bethal attorneys. The court considered the merits of the appeal and found that there were reasonable prospects of success, at least partially, for both appellants. In light of these factors, the court determined that it would not be appropriate to dismiss the appeals outright for non-prosecution. Instead, the appeals were struck off the roll, leaving the door open for the appellants to apply for reinstatement of their appeals.

Court Disposition

Both appeals were struck off the roll, with leave for the appellants to apply for reinstatement.

Orders

  • Both appeals are struck off the roll.
  • The appellants may apply for reinstatement of their appeals.