Tonkin v S (938/12) [2013] ZASCA 179; 2014 (1) SACR 583 (SCA) (29 November 2013)

Tonkin v S (938/12) [2013] ZASCA 179; 2014 (1) SACR 583 (SCA) (29 November 2013)

The Supreme Court of Appeal confirmed that it lacks jurisdiction to entertain appeals on the merits following refusal of leave to appeal by the High Court, as its powers are confined by statute to appeals against decisions of the High Court. The refusal of leave to appeal by the High Court is itself appealable, but only as to whether leave should have been granted, not the merits of the underlying conviction. On the facts, the appellant's prospects of success on appeal were found to be high, particularly regarding the magistrate's application of dolus eventualis, which may have failed to properly consider whether the appellant reconciled himself with the possibility of the window-pane...

Citation
[2013] ZASCA 179
Parties
Appellant: Oliver Jon Tonkin; Respondent: The State
Court
Supreme Court of Appeal
Jurisdiction
South Africa
Judgment Date
29 November 2013
Case Number
938/12
Procedural Posture
Leave to Appeal / Appeal Against Refusal of Petition for Leave to Appeal From High Court
Outcome
Appeal upheld; order of the High Court set aside and replaced with grant of leave to appeal to the High Court against conviction.
Judges
Brand, Lewis, Cachalia, Leach, Majiedt
Legal Topics
Leave to Appeal, Dolus Eventualis, Malicious Injury to Property, Criminal Procedure Act, Subjective Foreseeability
Criminal Law Civil Procedure Leave to Appeal Dolus Eventualis Malicious Injury to Property Criminal Procedure Act Subjective Foreseeability

Case Brief

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Parties

Oliver Jon Tonkin

Appellant

The State

Respondent

Procedural Posture

Leave to Appeal / Appeal Against Refusal of Petition for Leave to Appeal From High Court

Legal Issues

  1. 1 Whether the Supreme Court of Appeal has jurisdiction to entertain an appeal on the merits following refusal of leave to appeal by the High Court.
  2. 2 Whether the High Court erred in refusing leave to appeal against conviction for malicious injury to property.
  3. 3 Whether the element of reconciliation with foreseen harmful consequences was properly established for dolus eventualis.

Ratio Decidendi

The Supreme Court of Appeal confirmed that it lacks jurisdiction to entertain appeals on the merits following refusal of leave to appeal by the High Court, as its powers are confined by statute to appeals against decisions of the High Court. The refusal of leave to appeal by the High Court is itself appealable, but only as to whether leave should have been granted, not the merits of the underlying conviction. On the facts, the appellant's prospects of success on appeal were found to be high, particularly regarding the magistrate's application of dolus eventualis, which may have failed to properly consider whether the appellant reconciled himself with the possibility of the window-pane...

Court Disposition

Appeal upheld; order of the High Court set aside and replaced with grant of leave to appeal to the High Court against conviction.

Orders

  • The appeal is upheld.
  • The order of the court a quo is set aside and replaced with: 'The applicant is granted leave to appeal to the Free State High Court, Bloemfontein against his conviction of malicious injury to property in the Harrismith Magistrate’s Court.'