S v Truyens en Ander (CA44/09) [2012] ZANWHC 33 (28 June 2012)

S v Truyens en Ander (CA44/09) [2012] ZANWHC 33 (28 June 2012)

The court found that neither the record nor the appellants' heads of argument were available when the appeal was previously postponed, and that even after eighteen months, the record remained incomplete and the heads of argument were still not filed. The court held that this situation was wholly unacceptable and that the application for postponement must fail. Consequently, the appeal was not properly before the court and had to be struck off the roll. The court further determined that the appellants should not be penalized with costs for the postponement application, as the procedural failures were attributable to their attorney rather than the appellants themselves.

Citation
[2012] ZANWHC 33
Parties
Appellant: Johannes H Truyens; Appellant: Cornelius J van Zyl; Respondent: The State
Court
North West High Court, Mafikeng
Jurisdiction
South Africa
Judgment Date
28 June 2012
Case Number
CA44/09
Procedural Posture
Criminal Appeal / Application for Postponement and Striking Off Appeal From the Roll
Outcome
The application for postponement was dismissed and the appeal was struck off the roll. No costs order was made against the appellants for the postponement application and appearance.
Judges
A A Landman, N Gutta
Legal Topics
Appeal Striking Off, Postponement Application, Failure to File Heads of Argument
Criminal Law Civil Procedure Appeal Striking Off Postponement Application Failure to File Heads of Argument

Case Brief

Summary, issues, holding and outcome

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Parties

Johannes H Truyens

Appellant

Cornelius J van Zyl

Appellant

The State

Respondent

Procedural Posture

Criminal Appeal / Application for Postponement and Striking Off Appeal From the Roll

Legal Issues

  1. 1 Whether the appellants' failure to file heads of argument justified striking the appeal from the roll.
  2. 2 Whether the application for postponement should be granted in light of procedural delays.
  3. 3 Whether costs should be awarded against the appellants for the postponement application.

Ratio Decidendi

The court found that neither the record nor the appellants' heads of argument were available when the appeal was previously postponed, and that even after eighteen months, the record remained incomplete and the heads of argument were still not filed. The court held that this situation was wholly unacceptable and that the application for postponement must fail. Consequently, the appeal was not properly before the court and had to be struck off the roll. The court further determined that the appellants should not be penalized with costs for the postponement application, as the procedural failures were attributable to their attorney rather than the appellants themselves.

Court Disposition

The application for postponement was dismissed and the appeal was struck off the roll. No costs order was made against the appellants for the postponement application and appearance.

Orders

  • The application for postponement is dismissed.
  • The appeal is struck off the roll.