S v Khumalo (A1249/2006) [2008] ZAGPHC 139 (16 May 2008)

S v Khumalo (A1249/2006) [2008] ZAGPHC 139 (16 May 2008)

The full court held that after a judge has refused an application for leave to appeal, he is functus officio and cannot subsequently grant such leave. The subsequent order by Hussain J granting leave to appeal against sentence was a nullity, as he was unaware of his prior refusal. The court found no statutory or constitutional basis to override the principle of functus officio or to assume jurisdiction contrary to the express provisions of the Criminal Procedure Act. The appeal was not properly before the court, and the matter could not be heard without valid leave. The court struck the appeal from the roll, confirming that the granting of leave in these circumstances was invalid.

Citation
[2008] ZAGPHC 139
Parties
Appellant: Patrick Khumalo; Respondent: The State
Court
High Courts - Gauteng
Jurisdiction
South Africa
Judgment Date
16 May 2008
Case Number
A1249/2006
Procedural Posture
Criminal Appeal / Full Bench Appeal Against Sentence; Jurisdictional Challenge Due to Prior Refusal of Leave
Outcome
Appeal struck from the roll due to lack of jurisdiction; leave to appeal was invalidly granted.
Judges
F G Preller, A P Ledwaba, T J Vilakazi
Legal Topics
Functus Officio, Leave to Appeal, Criminal Procedure Act, Jurisdiction, Life Imprisonment
Criminal Law Civil Procedure Functus Officio Leave to Appeal Criminal Procedure Act Jurisdiction Life Imprisonment

Case Brief

Summary, issues, holding and outcome

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Parties

Patrick Khumalo

Appellant

The State

Respondent

Procedural Posture

Criminal Appeal / Full Bench Appeal Against Sentence; Jurisdictional Challenge Due to Prior Refusal of Leave

Legal Issues

  1. 1 Whether a judge is functus officio after refusing an application for leave to appeal and may subsequently grant such leave.
  2. 2 Whether the full court has jurisdiction to hear an appeal where leave was previously refused and later granted by the same judge.
  3. 3 Whether the granting of leave to appeal against sentence after prior refusal is valid.

Ratio Decidendi

The full court held that after a judge has refused an application for leave to appeal, he is functus officio and cannot subsequently grant such leave. The subsequent order by Hussain J granting leave to appeal against sentence was a nullity, as he was unaware of his prior refusal. The court found no statutory or constitutional basis to override the principle of functus officio or to assume jurisdiction contrary to the express provisions of the Criminal Procedure Act. The appeal was not properly before the court, and the matter could not be heard without valid leave. The court struck the appeal from the roll, confirming that the granting of leave in these circumstances was invalid.

Court Disposition

Appeal struck from the roll due to lack of jurisdiction; leave to appeal was invalidly granted.

Orders

  • The appeal is struck from the roll.
  • No order as to costs.