Masike v The State

On 20 June 2008, an armed robbery occurred at Blue Ribbon Bakery in Vereeniging. The robbers' getaway vehicle, driven by the appellant (Masike), drove through a red traffic light and collided with another vehicle, resulting in two passengers in the getaway vehicle being fatally injured. The appellant, as owner and driver of the getaway vehicle, was charged with six offenses including robbery with aggravating circumstances, possession of unlicensed firearms and ammunition, and two counts of culpable homicide. He was convicted on 6 December 2010 by the Vereeniging Regional Court on robbery and two counts of culpable homicide, and sentenced to 15 years' imprisonment for robbery and five years' imprisonment (concurrent) on each culpable homicide count. The appellant sought leave to appeal out of time, necessitating an application for condonation which was refused by the trial magistrate on 17 January 2011. He then petitioned the High Court which first refused the application on 22 September 2011, but subsequently granted leave to appeal to the Supreme Court of Appeal on 10 August 2012.

• Whether the High Court had jurisdiction to entertain the petition for leave to appeal when the trial court had not actually determined the substantive application for leave to appeal but had only refused condonation
• Whether the Supreme Court of Appeal has jurisdiction to hear an appeal where the underlying orders are procedurally defective
• What is the proper procedural pathway under sections 309B and 309C of the Criminal Procedure Act 51 of 1977 when a lower court refuses condonation for a late application for leave to appeal
• Whether a petition under section 309C(2)(a)(i) of the CPA should be brought when condonation is refused, rather than a petition under section 309C(2)(a)(iii)

The matter was struck from the roll due to lack of jurisdiction.

Where a trial court refuses an application for condonation for the late filing of an application for leave to appeal, but does not determine the substantive application for leave to appeal, the proper remedy is a petition to the Judge President of the High Court under section 309C(2)(a)(i) of the Criminal Procedure Act 51 of 1977 against the refusal of condonation, not a petition under section 309C(2)(a)(iii) as if leave to appeal had been refused on the merits. When a High Court grants leave to appeal to the Supreme Court of Appeal based on a fundamentally flawed procedural pathway where there was no substantive order refusing leave to appeal, such order amounts to a nullity and the Supreme Court of Appeal lacks jurisdiction to hear the matter. In such circumstances, the Supreme Court of Appeal has no discretion to exercise in favor of an appellant where jurisdiction is absent.

Petse JA observed that even if the court had possessed discretion to entertain the matter despite the jurisdictional defect, a careful perusal of the record left him in doubt that such discretion ought to be exercised in the appellant's favour in the circumstances of the case. The court also noted, when explaining the procedural requirements under section 309C(4), that when a petition is filed, the clerk of the court must submit to the registrar of the High Court copies of: (a) the application that was refused; (b) the magistrate's reasons for refusal; and (c) the record of proceedings. This ensures that judges considering a petition have at their disposal the necessary documents for proper adjudication.

This case clarifies the procedural framework under sections 309B and 309C of the Criminal Procedure Act 51 of 1977 for applications for leave to appeal from lower courts. It establishes that when a lower court refuses an application for condonation (rather than refusing leave to appeal on its merits), an accused must petition the Judge President of the High Court under section 309C(2)(a)(i) against the refusal of condonation, not under section 309C(2)(a)(iii) against a refusal of leave to appeal. The judgment emphasizes the importance of following proper procedural pathways and confirms that orders granted without jurisdiction are nullities. It also reinforces the principle from S v Khoasasa that when this court finds procedural defects in the grant of leave to appeal, it lacks jurisdiction to determine the substantive appeal. The case serves as an important reminder of the strict procedural requirements governing criminal appeals and the consequences of non-compliance, including for judicial officers who must correctly characterize the applications before them.