Van Der Merwe v S (A449/07) [2008] ZAWCHC 107; 2009 (1) SACR 673 (C) (30 May 2008)

Van Der Merwe v S (A449/07) [2008] ZAWCHC 107; 2009 (1) SACR 673 (C) (30 May 2008)

The High Court does not have jurisdiction to entertain an appeal against conviction where leave to appeal was granted only against sentence. Statutory provisions, specifically section 309C of the Criminal Procedure Act, govern the right of appeal, and the refusal of leave to appeal against conviction by two judges is a judicial decision not subject to review by the same court. Inherent jurisdiction and review powers do not extend to hearing appeals outside statutory limits, nor does section 173 of the Constitution confer additional appellate rights beyond those provided by statute. The appellant's proper recourse is to petition the President of the Supreme Court of Appeal in accordance...

Citation
[2008] ZAWCHC 107
Parties
Appellant: Christiaan van der Merwe; Respondent: The State
Court
Western Cape High Court, Cape Town
Jurisdiction
South Africa
Judgment Date
30 May 2008
Case Number
A449/07
Procedural Posture
Criminal Appeal / Judgment on Jurisdictional Point in Limine
Outcome
The High Court lacks jurisdiction to entertain the appeal against conviction; the appellant must petition the Supreme Court of Appeal.
Judges
E J S Steyn, E Moosa
Legal Topics
Leave to Appeal, Jurisdiction of High Court, Review Powers, Constitutional Right to Appeal
Criminal Law Civil Procedure Leave to Appeal Jurisdiction of High Court Review Powers Constitutional Right to Appeal

Case Brief

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Parties

Christiaan van der Merwe

Appellant

The State

Respondent

Procedural Posture

Criminal Appeal / Judgment on Jurisdictional Point in Limine

Legal Issues

  1. 1 Does the High Court have jurisdiction to entertain an appeal against conviction where leave to appeal was granted only against sentence?
  2. 2 Can the High Court exercise inherent or review jurisdiction to consider conviction in these circumstances?
  3. 3 Does section 173 of the Constitution expand the High Court's jurisdiction to grant leave to appeal over and above statutory provisions?

Ratio Decidendi

The High Court does not have jurisdiction to entertain an appeal against conviction where leave to appeal was granted only against sentence. Statutory provisions, specifically section 309C of the Criminal Procedure Act, govern the right of appeal, and the refusal of leave to appeal against conviction by two judges is a judicial decision not subject to review by the same court. Inherent jurisdiction and review powers do not extend to hearing appeals outside statutory limits, nor does section 173 of the Constitution confer additional appellate rights beyond those provided by statute. The appellant's proper recourse is to petition the President of the Supreme Court of Appeal in accordance...

Court Disposition

The High Court lacks jurisdiction to entertain the appeal against conviction; the appellant must petition the Supreme Court of Appeal.

Orders

  • The appeal of the appellant is postponed sine die.
  • The petition by the appellant for leave to appeal against conviction is to be addressed to the President of the Supreme Court of Appeal within 21 days from date hereof or within such further period as may be allowed.