Mfundo Nontshinga and Others v The State

The appellants, together with a co-accused (Mr Bolo), were convicted in the Regional Court in Port Elizabeth on 6 August 2010 on nine counts: housebreaking with intention to rob and robbery, six counts of kidnapping, unlawful possession of a firearm, and unlawful possession of ammunition. They were sentenced to an effective 17 years' imprisonment. Their application for leave to appeal was dismissed by the regional magistrate on 9 August 2010. The appellants then petitioned the Eastern Cape Division, Grahamstown for leave to appeal against their convictions and sentences, which was refused on 12 March 2011. Subsequently, their co-accused Mr Bolo petitioned the High Court under s 309C of the Criminal Procedure Act 51 of 1977 and was granted leave to appeal only in respect of counts eight and nine (unlawful possession of firearm and ammunition). His appeal was upheld by Plasket J with Brooks J concurring in Bolo v S [2014] ZAECGHC 99, and his convictions on these counts were set aside. Following this, the appellants lodged an application to the Supreme Court of Appeal for special leave to appeal against their convictions on counts eight and nine and the resulting sentences, which was granted.

• Whether the Supreme Court of Appeal had jurisdiction to grant special leave to appeal against the refusal of a petition by the High Court that occurred before the commencement of the Superior Courts Act 10 of 2013
• Whether leave to appeal from the High Court refusing the petition was a prerequisite to approaching the Supreme Court of Appeal under the Supreme Court Act 59 of 1959
• Whether the order granting special leave to appeal was valid where the appellants had not first sought leave from the High Court

The matter was struck from the roll on 4 May 2016. The court noted that in light of the outcome in Bolo, there should be little difficulty in the appellants obtaining the necessary leave to appeal from the High Court, but without that step having been taken, the Supreme Court of Appeal lacked jurisdiction to hear the matter.

Under the Supreme Court Act 59 of 1959, a refusal by the High Court of a petition for leave to appeal is an order as contemplated in sections 20(1) and 20(4) of that Act. Such an order is appealable to the Supreme Court of Appeal only with the leave of the High Court (the court whose order is being appealed) or, where the High Court refuses leave, with special leave from the Supreme Court of Appeal. Where an applicant seeks special leave from the Supreme Court of Appeal without first seeking leave from the High Court that refused the petition, the Supreme Court of Appeal has no jurisdiction to grant special leave, and any order purporting to grant such leave is a nullity. The proper procedural steps must be followed sequentially: first seeking leave from the High Court, and only if that is refused, then seeking special leave from the Supreme Court of Appeal.

The court observed that in light of the outcome in Bolo v S [2014] ZAECGHC 99, where the co-accused's convictions on the same counts (unlawful possession of firearm and ammunition) were set aside, there should be little difficulty in the appellants obtaining the necessary leave to appeal from the High Court. This comment suggests that the substantive merits of the appellants' case appear strong, given the precedent established in their co-accused's successful appeal, but the court was precluded from considering the merits due to the jurisdictional defect.

This case is significant in South African criminal procedure law as it reinforces the strict jurisdictional requirements for appeals to the Supreme Court of Appeal under the Supreme Court Act 59 of 1959 (applicable to matters prior to the Superior Courts Act 10 of 2013). It emphasizes that where a High Court refuses a petition for leave to appeal, an appellant must first seek leave from the High Court itself before approaching the Supreme Court of Appeal for special leave. The case demonstrates the importance of following proper procedural steps in the appellate process and clarifies that failure to do so renders any subsequent order by the Supreme Court of Appeal granting special leave a nullity. It confirms the consistent application of the principles established in S v Khoasasa regarding the appealability of orders refusing leave to appeal. The case also serves as a reminder that the transitional provisions between the Supreme Court Act and the Superior Courts Act must be carefully observed based on when the relevant events (trial, conviction, petition refusal) occurred.