S v RADEBE 2017 (1) SACR 619 (SCA)
Appeal — From magistrates’ court — Leave to appeal — Procedure — No appeal lying directly from lower court to Supreme Court of Appeal — Such appeals to be heard in specific High Court having jurisdiction — Effect of s 309(1)(a) of the Criminal Procedure Act 51 of 1977 where High Court refuses application for leave to appeal from conviction or sentence in magistrates’ court.
Where an accused wishes to appeal against the refusal by the High Court of an application for leave to appeal from conviction or sentence in magistrate’s court (the trial court having refused him leave to appeal), the leave to appeal granted by the Supreme Court of Appeal (the SCA) will not be against the conviction and sentence by the trial court but rather against the refusal of leave by the High Court. What this means is that the envisaged appeal will be suspended, pending the application for leave to appeal against the High Court’s refusal to grant leave (see ).
The court commented that, notwithstanding body of judgments from the SCA, there was still some misunderstanding in various divisions of the High Court about the correct approach in such cases. Section 309(1)(a) of the Criminal Procedure Act 51 of 1977 made it abundantly clear that no appeal lay directly from lower court to the SCA. Such appeals had to be heard in the specific High Court having jurisdiction (see ).