S v Msani and Another (A2666/03) [2008] ZAGPHC 383 (9 June 2008)

S v Msani and Another (A2666/03) [2008] ZAGPHC 383 (9 June 2008)

The court held that leave to appeal to the Supreme Court of Appeal cannot be granted while the appeal to the High Court remains pending. The High Court had previously exercised its review powers and altered certain convictions and sentences, but the appeal itself was struck from the roll due to late filing of heads of argument and remains unresolved. The court found it undesirable to exercise review powers while an appeal is pending, except in limited circumstances. As the appeal concerning counts 1, 2, and 4 is still pending, the appropriate course is to re-enrol and postpone the appeal sine die, and to request the registrar to locate the trial record so that the appeal may be heard...

Citation
[2008] ZAGPHC 383
Parties
Appellant: John Msani; Appellant: Sipho Ngubane; Respondent: The State
Court
High Courts - Gauteng
Jurisdiction
South Africa
Judgment Date
9 June 2008
Case Number
A2666/03
Procedural Posture
Leave to Appeal / Application for Leave to Appeal Following Partial Review and Alteration of Sentences; Appeal Pending Before High Court.
Outcome
Leave to appeal to the Supreme Court of Appeal is refused; the appeal to the High Court remains pending and is re-enrolled and postponed sine die.
Judges
B.R. Du Plessis, E. Jordaan
Legal Topics
Leave to Appeal, Review Powers of High Court, Robbery With Aggravating Circumstances, Illegal Possession of Firearm, Kidnapping
Criminal Law Civil Procedure Leave to Appeal Review Powers of High Court Robbery With Aggravating Circumstances Illegal Possession of Firearm Kidnapping

Case Brief

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Parties

John Msani

Appellant

Sipho Ngubane

Appellant

The State

Respondent

Procedural Posture

Leave to Appeal / Application for Leave to Appeal Following Partial Review and Alteration of Sentences; Appeal Pending Before High Court.

Legal Issues

  1. 1 Whether leave to appeal to the Supreme Court of Appeal can be granted when the appeal to the High Court is still pending.
  2. 2 Whether the High Court properly exercised its review powers while an appeal was pending.
  3. 3 What procedural steps are required to ensure the pending appeal is heard expeditiously.

Ratio Decidendi

The court held that leave to appeal to the Supreme Court of Appeal cannot be granted while the appeal to the High Court remains pending. The High Court had previously exercised its review powers and altered certain convictions and sentences, but the appeal itself was struck from the roll due to late filing of heads of argument and remains unresolved. The court found it undesirable to exercise review powers while an appeal is pending, except in limited circumstances. As the appeal concerning counts 1, 2, and 4 is still pending, the appropriate course is to re-enrol and postpone the appeal sine die, and to request the registrar to locate the trial record so that the appeal may be heard...

Court Disposition

Leave to appeal to the Supreme Court of Appeal is refused; the appeal to the High Court remains pending and is re-enrolled and postponed sine die.

Orders

  • The appellant's appeal against convictions and sentences on counts 1, 2, and 4 is re-enrolled and postponed sine die.
  • The registrar is requested to locate the record of the proceedings in the regional court and to deal with it accordingly.