Lubisi v The State

The appellant was convicted of murder in the Regional Court, Nelspruit, and sentenced to ten years’ imprisonment. His application for leave to appeal against conviction was refused by the regional magistrate. A subsequent petition for leave to appeal in terms of s 309C of the Criminal Procedure Act 51 of 1977 to the Gauteng Division of the High Court was also dismissed. The appellant then applied to the Supreme Court of Appeal (SCA) for special leave to appeal. The SCA granted special leave, and the matter before it concerned whether the High Court had erred in refusing leave to appeal, and whether the SCA had jurisdiction to entertain the merits of the conviction.

The appeal was upheld. The order of the High Court was set aside and replaced with an order granting the appellant leave to appeal to the Gauteng Division of the High Court against his conviction of murder.

The case reaffirms the appellate hierarchy in South African criminal procedure and confirms that the Supreme Court of Appeal has no jurisdiction to hear appeals on the merits directly from magistrates’ courts. It clarifies that, in such circumstances, the SCA’s role is limited to determining whether the High Court erred in refusing leave to appeal, applying the test of reasonable prospects of success.