James Khoasasa v Die Staat

The appellant was convicted on 23 December 1999 in a regional court of theft of a fine gold bar weighing 17.886 kg valued at R1,310,000.30, and contravention of section 143(1) of the Mining Rights Act 20 of 1967 for selling the gold bar. He was sentenced to 15 years imprisonment for theft and 5 years (suspended) for the statutory offence. The gold was stolen from Saaiplaas mine by the appellant, Hudson, Meiring and Klein. The appellant did not physically remove the gold but found a buyer, conducted negotiations and received R40,000 while the other three received R275,000 each. The regional court refused the appellant leave to appeal under section 309B. He then applied under section 309C to the Judge President of the Orange Free State Provincial Division, which was refused by two judges on 25 January 2000. After his co-accused Hudson and Meiring successfully appealed their sentences from 15 years to 6 years, the appellant applied to the Chief Justice for leave to appeal to the Supreme Court of Appeal.

• Whether the Supreme Court of Appeal has jurisdiction to hear an appeal directly from a regional court conviction and sentence
• Whether the Supreme Court of Appeal has jurisdiction to hear an appeal against a Provincial Division's refusal of leave to appeal under section 309C
• Whether leave to appeal is required to appeal to the Supreme Court of Appeal against a Provincial Division's refusal under section 309C
• The proper interpretation of sections 309, 309B and 309C of the Criminal Procedure Act 51 of 1977
• The proper interpretation of sections 20 and 21 of the Supreme Court Act 59 of 1959 in the context of criminal appeals

The appeal was struck from the roll for lack of jurisdiction. The Court held that the order granting leave to appeal was a nullity because the appellant had not first applied to the Provincial Division for leave to appeal against its refusal under section 309C before approaching the Supreme Court of Appeal.

The binding legal principles are: (1) The Supreme Court of Appeal has no jurisdiction to hear appeals directly from regional court convictions and sentences - such appeals lie to the Provincial or Local Division. (2) A Provincial Division's decision refusing leave to appeal under section 309C of the Criminal Procedure Act constitutes a 'decision on appeal' within the meaning of section 20(4) of the Supreme Court Act 59 of 1959. (3) An appeal to the Supreme Court of Appeal against such refusal is competent under section 20(4), but requires leave either from the Provincial Division or, if refused by it, from the Supreme Court of Appeal. (4) An applicant must first seek leave to appeal from the Provincial Division before the Supreme Court of Appeal has jurisdiction to entertain an application for such leave. Where this procedure is not followed, any order by the Supreme Court of Appeal purporting to grant leave is a nullity for want of jurisdiction. (5) The term 'appeal' in section 20(4) bears its wider meaning as comprehending any approach to a Division for relief from a decision of an inferior court, not merely appeals in the strict technical sense.

The Court noted that the decision in Ngwadi Mzamo v Die Staat (case no. 099/2000), where the Supreme Court of Appeal held it was not empowered to entertain an application for leave to appeal against a High Court's refusal of leave to appeal from a magistrate's court, was incorrect for the reasons set out in this judgment. The Court also noted that the Constitutional Court in S v Steyn 2001 (1) SA 1146 (CC) left open the question of whether the Supreme Court of Appeal has jurisdiction to hear appeals against refusals of leave under section 309C. The judgment also observed that sections 309B and 309C were declared invalid by the Constitutional Court in S v Steyn, with the declaration of invalidity suspended for six months from 29 November 2000, meaning these provisions remained in force for the period relevant to this case.

This case clarifies the proper appellate route in criminal matters from regional courts and establishes important principles regarding appellate jurisdiction: (1) It confirms there is no direct right of appeal from a regional court to the Supreme Court of Appeal - appeals must proceed through the Provincial/Local Division first. (2) It establishes that an application under section 309C to the Provincial Division for leave to appeal, though not formally styled as an appeal, is in substance an appeal and the Division's decision thereon is a 'decision on appeal' for purposes of section 20(4) of the Supreme Court Act. (3) It clarifies that a further appeal to the Supreme Court of Appeal from a Provincial Division's refusal under section 309C is possible under section 20(4), but requires leave - and such leave must first be sought from the Provincial Division before the Supreme Court of Appeal can entertain an application. (4) The case illustrates the principle that courts have no jurisdiction to grant leave to appeal where the prerequisite steps (seeking leave from the lower court first) have not been followed, and such orders are nullities. (5) It applies the interpretive principle that legislation is not presumed to alter existing legal rights unless clearly indicated, concluding that sections 309B and 309C (which added a leave requirement for appeals from lower courts) did not impliedly remove the right to further appeal under section 20.