S v Thabete and Another [2006] ZAFSHC 170; [2006] ZAFSHC 140 (23 February 2006)

S v Thabete and Another [2006] ZAFSHC 170; [2006] ZAFSHC 140 (23 February 2006)

The High Court held that the appellants were not required to seek and obtain special leave to appeal from the Judge President under section 309C of the Criminal Procedure Act. The declaration of invalidity by the Constitutional Court in S v Steyn, and the principle of objective constitutional invalidity, meant that sections 309B and 309C were invalid from the date of their enactment, not merely from the expiry of the suspension period. As a result, the original section 309(1) and 309(2) were revived, and the appellants had an unfettered right to appeal directly from the lower court to the High Court. The point in limine raised by the respondent failed, and the appeal was properly before...

Citation
[2006] ZAFSHC 170
Parties
Appellant: Nkosinathi Emmanuel Thabete; Appellant: Sefiso Fumesane Mkhize; Respondent: The State
Court
Free State High Court, Bloemfontein
Jurisdiction
South Africa
Judgment Date
23 February 2006
Case Number
A30/2006
Procedural Posture
Criminal Appeal / Appeal Against Conviction and Sentence; Point in Limine on Procedural Validity
Outcome
Point in limine dismissed. Appeal is properly before the court.
Judges
Rampai, Mathebula
Legal Topics
Leave to Appeal, Objective Constitutional Invalidity, Criminal Procedure Act, Retrospective Invalidation
Criminal Law Civil Procedure Leave to Appeal Objective Constitutional Invalidity Criminal Procedure Act Retrospective Invalidation

Case Brief

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Parties

Nkosinathi Emmanuel Thabete

Appellant

Sefiso Fumesane Mkhize

Appellant

The State

Respondent

Procedural Posture

Criminal Appeal / Appeal Against Conviction and Sentence; Point in Limine on Procedural Validity

Legal Issues

  1. 1 Whether the appellants were required to petition the Judge President for special leave to appeal under section 309C of the Criminal Procedure Act.
  2. 2 Whether the appeal was properly before the High Court given the constitutional invalidity of sections 309B and 309C.
  3. 3 What is the effect of the Constitutional Court's declaration of invalidity and its suspension on pending appeals.

Ratio Decidendi

The High Court held that the appellants were not required to seek and obtain special leave to appeal from the Judge President under section 309C of the Criminal Procedure Act. The declaration of invalidity by the Constitutional Court in S v Steyn, and the principle of objective constitutional invalidity, meant that sections 309B and 309C were invalid from the date of their enactment, not merely from the expiry of the suspension period. As a result, the original section 309(1) and 309(2) were revived, and the appellants had an unfettered right to appeal directly from the lower court to the High Court. The point in limine raised by the respondent failed, and the appeal was properly before...

Court Disposition

Point in limine dismissed. Appeal is properly before the court.

Orders

  • The point in limine raised by the respondent fails.
  • The appeal of each appellant is properly before the court.