THE SUPREME COURT OF APPEAL OF SOUTH AFRICA
JUDGMENT

Case no: 470/2012
Not Reportable
In the matter between:

THEMBA AARON NKOSI

Appellant

and

THE STATE

Respondent

Neutral citation: Nkosi v The State (470/2012) [2013] ZASCA 32 (27 March
2013)

Coram:
CACHALIA,
MALAN
and
THERON
JJA
and
SCHOEMAN and PLASKET AJJA

Heard:

15 March 2013

Delivered
27 March 2013

Summary:
Criminal procedure – appeal – appellant dying before
appeal heard – appeal struck off the roll.

________________________________________________________________
ORDER
________________________________________________________________
On appeal from: North Gauteng High Court, Pretoria (Mynhardt, Basson and
Mavundla JJ sitting as a court of appeal):
(a) The order granted by this court on 15 March 2013 is recalled.
(b) The matter is struck off the roll.

________________________________________________________________
JUDGMENT
________________________________________________________________
THERON JA (CACHALIA and MALAN JJA and SCHOEMAN and
PLASKET AJJA concurring):

[1] The appellant stood trial in the North Gauteng High Court sitting at
Ermelo on two counts of murder and one count of housebreaking with intent to
commit robbery with aggravating circumstances. The appellant pleaded not
guilty but was convicted on all three counts on 30 January 1998 and sentenced
to an effective term of imprisonment of sixty years. The appellant’s appeal to
the high court was dismissed. The appellant appealed to this court against his
convictions and sentences with the appropriate leave.

[2] At the hearing of the appeal and after having heard counsel representing
both parties, the court was of the view that it ought to interfere with the
convictions and sentences imposed and that it was in the interests of justice that
it direct that the appellant be released from prison immediately. In the
circumstances, the following order was granted:

‘The appeal against the convictions and sentences is upheld. The order of the court below is
set aside and the following order substituted:
“1. The appeal against the convictions on two counts of murder and one of housebreaking
with intent to commit robbery and robbery with aggravating circumstances is upheld. The
convictions and sentences on these counts in the high court are set aside.
2. The appellant is found guilty as an accessory after the fact to the murders of Herman
Segemendes Mosenthal Schultz and his wife, Susara Maria Schultz.
3. The appellant is found guilty on the competent verdict of theft for count 3.
4. The appellant is sentenced to five years’ imprisonment as an accessory after the fact to
murder, and to two years’ imprisonment for theft. It is ordered that the sentence on the theft
count is to run concurrently with the sentence for the conviction as an accessory after the fact
to murder. The sentences are ante-dated to 30 January 1998.
5. It is ordered that the appellant, who commenced serving his sentence on 30 January 1998,
be released forthwith.”’

[3] It was subsequently brought to our attention that the appellant had passed
away during November 2012. This court thus had no jurisdiction to deal with
the appeal.1

[4] The following order is made:
(a)
The order granted by this court on 15 March 2013 is recalled.
(b)
The matter is struck off the roll.

__________________
L V THERON
JUDGE OF APPEAL

1 S v January; Prokureur-Generaal, Natal v Khumalo 1994 (2) SACR 801 (A) at 809g-h.

APPEARANCES
For Appellant:

MK Steenekamp
Instructed by:
Legal Aid SA, Pretoria
Legal Aid SA, Bloemfontein

For Respondent:

GD Baloyi

Instructed by:
Director of Public Prosecutions, Pretoria
Director of Public Prosecutions,
Bloemfontein