THE SUPREME COURT OF APPEAL OF SOUTH AFRICA

JUDGMENT

Reportable
Case no: 770/2015

In the matter between:

MFUNDO NONTSHINGA
APPELLANT
MZWEKHAYA ZAGANA
MANDLA MAZWI
DUMISANI SIKAKANA

and

THE STATE
RESPONDENT

Neutral citation:
Mfundo Nontshinga v S (770/2015) [2016] ZASCA 76 (27May 2016)

Bench:

Leach, Saldulker and Dambuza JJA

Heard:

04 May 2016

Delivered:

27 May 2016

Summary:
Criminal Procedure: Appeal against the refusal of a petition for
leave to appeal by High Court before the commencement of the
Superior Courts Act 10 of 2013 – No leave sought from the court
refusing the petition – special leave to appeal granted against
conviction by the Supreme Court of Appeal – order a nullity –
Supreme Court of Appeal having no jurisdiction.

_____________________________________________________________________

ORDER
______________________________________________________________________

On appeal from: Eastern Cape Division of the High Court (Somyalo J.P sitting as court
of appeal).
The following order was made on 4 May 2016:
The matter is struck from the roll.
______________________________________________________________________

JUDGMENT
______________________________________________________________________

Saldulker JA (Leach and Dambuza JJA concurring):

[1] On 4 May 2016, this court struck this matter off the roll, with reasons to follow.
These are the reasons. The appellants together with a co-accused, Mr Vusumzi Bolo,
were each charged with nine counts, namely: one count of housebreaking with the
intention to rob and robbery, six counts of kidnapping, one count of unlawful possession
of a fire arm and one count of unlawful possession of ammunition. At the end of the trial,
on 6 August 2010 the Regional Court in Port Elizabeth (the trial court) convicted them
on all nine counts and sentenced them to an effective 17 years’ imprisonment. Their
application for leave to appeal against their convictions and sentences was dismissed
by the regional magistrate on 9 August 2010.

[2] Aggrieved, the appellants lodged a petition for leave to appeal to the Eastern
Cape Division, Grahamstown (the high court), against their convictions and sentences.
Their petitions were refused on 12 March 2011. Subsequently, their co - accused, Mr
Bolo, relying on s 309C of the Criminal Procedure Act 51 of 1977, also petitioned the
high court, for leave to appeal against his convictions. His petition was granted, but only
in respect of the convictions for unlawful possession of the firearm and ammunition, that
is counts eight and nine. In the event, his appeal on these counts was upheld by Plasket
J with Brooks J concurring (Bolo v S [2014] ZAECGHC 99), and his convictions on
counts eight and nine were set aside. Plasket J directed that the appellants be informed
of this judgment.

[3] Following from that the appellants lodged an application to this court for special
leave to appeal against their convictions on counts eight and nine being the unlawful
possession of a firearm and ammunition, and resulting sentences. This court granted
the appellants special leave. In this way the appellants came before us purportedly on
an appeal against the refusal of a petition by the high court.

[4] Before us, the parties were agreed that the appellants’ trial, their convictions and
sentences, and the subsequent refusal of their petitions by the high court on 12 March
2013 took place prior to the promulgation of the Superior Courts Act 10 of 2013. As a
result, this matter must be determined in terms of the Supreme Court Act 59 of 1959. In
S v Khoasasa [2002] ZASCA 113; 2003 (1) SACR 123 (SCA) it was held that a refusal

of leave to appeal by the high court, is an order as contemplated in ss 20(1) and 20(4)
of the Supreme Court Act, and was appealable to the Supreme Court of Appeal only
with the leave of the high court, (being the court against whose order the appeal was to
be made) or, where leave was refused, with the leave of this court. This judgment has
consistently been followed in this court: See S v Matshona [2008] ZASCA 58; 2013 (2)
SACR 126 (SCA), S v Tonkin [2013] ZASCA 179; 2014 (1) SACR 583 (SCA); S v
Robert Brown (SCA) unreported case no: 988/2013 (17 March 2015); Johannes
Windvogel v S [2015] ZASCA 63 (SCA). In the matter before us, no such leave was
sought from the high court against the refusal of their petitions before the appellants
proceeded to this court for special leave. That being the case, the order of this court
granting special leave to the appellants is a nullity as this court had no jurisdiction to
hear the application. Accordingly leave had not validly been granted to appeal to this
court. When this was pointed out to the parties, both sides acknowledged that the
appeal was not properly before us and cannot now be heard.

[5] In the light of the outcome in Bolo, there should be little difficulty in the appellants
obtaining the necessary leave to appeal from the high court. But without that step
having yet being taken, this court lacks jurisdiction to hear the matter. For these reasons
the matter was struck from the roll.

________________
HK Saldulker
Judge of Appeal

APPEARANCES:

For Appellant:

L Crouse (and H Charles)

Instructed by:

Port Elizabeth Justice Centre, Port Elizabeth

Bloemfontein Justice Centre. Bloemfontein

For Respondent:

M Stander
Instructed by:
Director of Public Prosecutions, Grahamstown

Director of Public Prosecutions, Bloemfontein
THE SUPREME COURT OF APPEAL OF SOUTH AFRICA

MEDIA SUMMARY OF JUDGMENT DELIVERED IN THE SUPREME COURT OF APPEAL

FROM

The Registrar, Supreme Court of Appeal

DATE

27 May 2016

STATUS

Immediate

Please note that the media summary is for the benefit of the media and does not form part of
the judgment.

Mfundo Nontshinga v S (770/2015) [2016] ZASCA 76 (27 May 2016)

MEDIA STATEMENT

Today, the Supreme Court of Appeal (SCA) gave reasons for an order given on 4 May 2016, in terms
of which an appeal by Mr Mfundo Nontshinga and three others was struck from the roll.
The issue before the SCA was whether it could hear an appeal against a refusal by a Division of the
High Court of a petition for leave to appeal, where (i) the appellants had not first sought leave to
appeal against the refusal from that Division, and (ii) the procedure was governed by the Supreme
Court Act 59 of 1959.
The appellants were all convicted on a number of counts by the Regional Court in Port Elizabeth,
including counts of unlawful possession of a fire arm and unlawful possession of ammunition.
The appellants petitioned the Eastern Cape Division, Grahamstown, for leave to appeal against their
convictions and sentences, which petition was refused.  The appellants then applied to the SCA for
special leave to appeal against their convictions on the unlawful possession charges, which special
leave was granted.
The SCA held that, in terms of the procedure applicable at the time (which was governed by the
Supreme Court Act 59 of 1959), the refusal of the petition for leave to appeal by the Eastern Cape
Division was only appealable to the SCA with the leave of that court, or (where leave was refused)
with the leave of the SCA.
In the absence of any application to the Eastern Cape Division for leave to appeal against its refusal,
the SCA had no jurisdiction to grant special leave to appeal to it, and accordingly its prior order was a
nullity.
Accordingly, the SCA struck the matter from the roll.

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