DELAY IN BRINGING LEAVE TO APPEAL – EXCEPTIONAL CIRCUMSTANCES REQUIRED

S v NTLANYENI 2016 (1) SACR 581 (SCA)

Appeal — Leave to appeal — Reconsideration of — Delay in bringing application — Authority of President of SCA to reconsider not time-bound but exceptional circumstances must exist — Superior Courts Act 10 of 2013, s 17(2)(f).

Section 17(2)(f) of the Superior Courts Act 10 of 2013 provides that ‘(t)he decision by the majority of the judges considering leave to appeal . . ., or the decision of the court . . . to grant or refuse an application for leave shall be final: Provided that the President of the Supreme Court of Appeal may in exceptional circumstances, whether of his or her own accord or on application filed within one month of the decision, refer the decision to the court for reconsideration . . . .’

The authority of the President of the Supreme Court of Appeal to refer such a decision is not time-bound but what is paramount is that the circumstances leading to the application must be exceptional.

In the present case, where the applicant had been refused leave to appeal whereas his two co-accused had been granted leave to appeal, the fact that the application was only brought 10 months after refusal of leave to appeal was irrelevant.

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