CRIMINAL LAW – HIGH COURT MAY NOT EXERCISE JURISDICTION AS AN APPEAL COURT IN RESPECT OF ITS OWN PREVIOUS ORDER – Review ito section 16 of Supreme Court Act

CRIMINAL LAW – HIGH COURT MAY NOT EXERCISE JURISDICTION AS AN APPEAL COURT IN RESPECT OF ITS OWN PREVIOUS ORDER – Review ito section 16 of Supreme Court Act

Having heard arguments in respect of an appeal on 14 October 2019, and in the process of writing judgment in respect of the appeal, the Supreme Court had reason to believe that an irregularity might have occurred during the proceedings in the High Court, in that on 8 December 2017, two justices of the High Court refused and struck from the roll appellant’s condonation for late noting of his appeal, holding that there were no prospects of success on appeal. And, on 20 March 2018, a slightly differently constituted Bench of the High Court granted the appellant leave to appeal to the Supreme Court, holding that there were prospects of success on appeal. One of the justices presided on both matters.

The Supreme Court exercised its powers in terms of section 16 the Act, to mero motu review the proceedings of the High Court whenever it comes to its attention that an irregularity has occurred. HOFF JA (ANGULA AJA and NKABINDE AJA concurring) considered the matter and held that:

1. The appeal against the refusal of condonation application lies as of right to the Supreme Court and no leave to appeal from the trial court is necessary.
2. Two contradicting orders existed side by side since the first order (of 8 December 2017) had not been set aside by a competent court of law.
3. It was a grave irregularity for the second constituted High Court to overrule an order of the first court. The High Court may not exercise jurisdiction as an appeal court in respect of its own previous order.
4. The second judgment and order offend against the principles of functus officio and res judicata.
5. The appeal was not procedurally placed before the court, but came to it through a highly irregular March 2018 order.
6. There were vitiating irregularities and the second judgment and order could not stand, and as such they were reviewed and set aside.
7. The judgment and order of 20 March 2018 constituted an irregularity and were reviewed and set aside.
8. The notice of appeal filed by the appellant on 23 April 2018 with the Registrar of the Supreme Court constituted an irregularity and was reviewed and set aside.
9. The proceedings hear by the court on 14 October 2019 were struck from the roll.

Likoro v S NASC 12 April 2022