Themba Aaron Nkosi v The State

The appellant was convicted in the North Gauteng High Court sitting at Ermelo on 30 January 1998 on two counts of murder and one count of housebreaking with intent to commit robbery with aggravating circumstances. He pleaded not guilty but was convicted on all counts and sentenced to an effective term of 60 years imprisonment. His appeal to the high court was dismissed. He then appealed to the Supreme Court of Appeal against his convictions and sentences with appropriate leave. During November 2012, before the appeal could be heard by the Supreme Court of Appeal, the appellant passed away. The appeal was heard on 15 March 2013, at which point the court was not aware of the appellant's death.

• Whether the Supreme Court of Appeal has jurisdiction to hear an appeal where the appellant has died before the appeal is heard
• Whether an order made by the court without knowledge of the appellant's death should be recalled

The order granted by the court on 15 March 2013 was recalled. The matter was struck off the roll.

A court has no jurisdiction to hear or determine a criminal appeal where the appellant has died before the appeal is heard. When an appellant dies pending an appeal, the proper course is to strike the matter off the roll. Any order made by the court without knowledge of the appellant's death must be recalled.

Although not expressly stated as obiter dicta, the court's initial findings that it would have been appropriate to interfere with the convictions and sentences (reducing murder convictions to accessory after the fact and robbery with aggravating circumstances to theft, and ordering immediate release) do not form part of the binding precedent as the order was recalled. These findings illustrate what the court's substantive decision would have been had the appellant been alive, but they have no legal force given the jurisdictional impediment.

This case reaffirms the fundamental principle in South African criminal procedure that a court has no jurisdiction to hear or determine an appeal where the appellant has died before the appeal is heard. It demonstrates the court's commitment to procedural propriety and the recognition that criminal proceedings are personal to the accused and cannot continue after their death. The case illustrates the court's willingness to recall its own orders when it becomes apparent that jurisdictional requirements were not met.