Jose Pedro Morais Carneiro v The State

The appellant was convicted of murder by the Regional Court, Johannesburg on 12 September 2006 and sentenced to seven years imprisonment on 20 November 2006. He applied for leave to appeal against his conviction and was granted bail pending appeal. On 1 December 2010, the Gauteng Local Division dismissed his appeal. On 8 December 2010, he filed an application for leave to appeal against that order. This application was heard on 29 April 2016, at which time it was struck off the roll on the basis that the high court lacked jurisdiction in terms of the Superior Courts Act 10 of 2013 (the new Act), which had been promulgated in August 2013 while the application was pending. The high court held that under s16(1)(b) of the new Act, the appellant required special leave from the Supreme Court of Appeal rather than applying to the high court.

• Whether an application for leave to appeal that was launched and still pending at the promulgation of the Superior Courts Act 10 of 2013 is governed by the provisions of the Supreme Court Act 59 of 1959 or the Superior Courts Act 10 of 2013
• Whether the Superior Courts Act 10 of 2013 operates retrospectively or prospectively
• Whether the new Act affects existing substantive rights or merely regulates procedural matters
• The proper interpretation of section 52 of the Superior Courts Act 10 of 2013 dealing with pending proceedings

1. The appeal succeeds. 2. The high court's order striking off the matter from the roll is set aside. 3. The high court is directed to deal, in terms of the Supreme Court Act 59 of 1959, with the application for leave to appeal against its order of 29 April 2016.

Where legislation not only regulates procedural issues but also affects existing substantive rights, it operates prospectively only and not retrospectively. Proceedings pending at the commencement of the Superior Courts Act 10 of 2013 must be continued and concluded under the Supreme Court Act 59 of 1959 in accordance with section 52 of the new Act. An application for leave to appeal that was launched and pending at the promulgation of the Superior Courts Act 10 of 2013 is governed by the provisions of the Supreme Court Act 59 of 1959, not the new Act. The imposition of a higher threshold for leave to appeal under section 17(1) of the new Act (requiring both reasonable prospects of success and compelling reasons) constitutes an interference with existing substantive rights acquired under the old Act (which required only reasonable prospects of success), and such rights cannot be retrospectively prejudiced. Section 12(2) of the Interpretation Act 33 of 1957 protects rights acquired or accrued under repealed legislation from being affected by the repeal unless a contrary intention appears.

The court expressed regret regarding the delay in finalizing the matter but noted it was unavoidable, emphasizing that justice must not only be done but must be seen to be done. The court expressed hope that the matter would be dealt with expeditiously from that point forward. The court clarified that although section 52(2) of the Superior Courts Act appears to refer to civil proceedings by using the term 'summons', the plain meaning of 'proceedings pending in any court' must include criminal proceedings, following the reasoning in Gonya v S. The court noted that the confusion in such matters made it necessary to reaffirm the appropriate procedure when an application for leave to appeal is refused by the high court, reiterating the procedural steps set out in S v Koasasa.

This case is significant in South African law for clarifying the temporal application of the Superior Courts Act 10 of 2013, particularly regarding pending proceedings at the time of its promulgation. It established that the new Act operates prospectively, not retrospectively, where it affects substantive rights and not merely procedural matters. The case is important for distinguishing between legislation that is purely regulatory (affecting only procedure) and legislation that impacts existing rights. It reinforced the principle that where new legislation imposes more stringent requirements for appeals, it cannot be applied to proceedings commenced under the old regime where this would prejudice existing rights. The judgment provides guidance on the interpretation of section 52 of the Superior Courts Act dealing with pending proceedings and its interaction with the Interpretation Act.