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[2012] ZASCA 129
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S v Thekiso (73/2012) [2012] ZASCA 129 (25 September 2012)
THE
SUPREME COURT OF APPEAL OF SOUTH AFRICA
JUDGMENT
SCA Case No: 73/2012
Not Reportable
In the matter between:
ZAKHELE THEKISO
...............................................................................
APPELLANT
and
THE
STATE
..........................................................................................
RESPONDENT
Neutral
citation
:
Thekiso
v S
(73/2012)
[2012] ZASCA 129
(25
September 2012)
Coram
: Van Heerden
and Shongwe JJA and Erasmus AJA
Heard
:
12
September 2012
Delivered: 25
September 2012
Summary
:
Criminal Procedure – leave to appeal – appeal against
refusal of petition – issue to be determined is whether
leave
to appeal should have been granted by the High Court and not the
appeal itself – the test is whether appellant enjoys
reasonable
prospects of success in the envisaged appeal, not the merits of the
appeal.
Order
On appeal from:
Northern Gauteng High Court, Pretoria (Du Plessis & Legodi JJ
sitting as court of appeal):
The following order is
made:
(a) The appeal is upheld.
(b) The order refusing
the appellant leave to appeal is set aside and replaced with an order
granting the appellant leave to appeal
to the North Gauteng High
Court, Pretoria, against the sentences imposed upon him in the
regional court.
judgment
_______________________________________________________________
VAN HEERDEN JA (SHONGWE
JA & ERASMUS AJA concurring):
The
appellant, Mr Zakhele Thekiso (accused 1 in the trial), was
convicted in the then Southern Transvaal Regional Court held at
Daveyton of five charges, namely murder, attempted murder, and three
charges of kidnapping. He was sentenced to 20 years’
imprisonment on the murder charge, 10 years’ imprisonment on
the attempted murder charge, and to 5 years’ imprisonment
on
each of the three kidnapping charges. As none of the sentences was
ordered to run concurrently with any other sentence, his
effective
sentence was 45 years’ imprisonment.
The
appellant’s application to the Regional Court for leave to
appeal against both conviction and sentence was refused.
He then
directed a petition for leave to appeal against both conviction and
sentence to the North Gauteng High Court. This was
dismissed by Du
Plessis and Legodi JJ. Thereafter, the appellant directed a further
petition to this court, which petition was
referred to the Registrar
of the North Gauteng High Court. In accordance with
S
v Khoasasa
2003
(1) SA 123
(SCA), the High Court dealt with this as an application
for leave to appeal against its refusal of the first petition.
Du
Plessis and Van den Heever JJ, who heard this application for leave
to appeal, concluded that, as regards the convictions,
the
application had no merit. Leave was accordingly refused. At the same
time, however, the High Court granted leave to the appellant
to
appeal to this court against the High Court’s refusal of his
petition for leave to appeal against sentence. This latter
refusal
is the issue in the appeal that currently serves before us.
It
is clear from recent case law emanating from this court
1
that the ambit of the
appeal before us is limited. We cannot determine the merits of the
appeal, but are confined to the question
whether leave to appeal to
the High Court against sentence should have been granted, in other
words, whether there is a reasonable
prospect of success in the
envisaged appeal against sentence, rather than whether the appeal
against the sentence ought to succeed
or not.
According
to the appellant, the trial court erred in not taking into account
the cumulative effect of the sentences imposed upon
him, resulting
in an effective sentence that is manifestly inappropriate.
Furthermore, he contended, his sentence was disproportionately
heavy
when compared with the sentences imposed on his six co-accused.
2
This was conceded by
counsel for the State.
A
sentence of 45 years’ imprisonment is undoubtedly very severe.
Bearing this in mind, and given the concession by counsel
for the
State, there exists in my view a reasonable prospect that a court of
appeal might consider the sentence imposed to be
too severe. This
appeal must therefore succeed.
In
the circumstances, the following order is issued:
(a) The appeal is upheld.
(b) The order refusing
the appellant leave to appeal is set aside and replaced with an order
granting the appellant leave to appeal
to the North Gauteng High
Court, Pretoria,
against
the sentences imposed upon him in the regional court.
B J VAN HEERDEN
JUDGE
OF APPEAL
APPEARANCES:
APPELLANT: L AUGUSTYN
INSTRUCTED BY PRETORIA
JUSTICE CENTRE, PRETORIA
BLOEMFONTEIN JUSTICE
CENTRE, BLOEMFONTEIN
RESPONDENT: S R SIBARA
INSTRUCTED BY DIRECTOR OF
PUBLIC PROSECUTIONS, PRETORIA
DIRECTOR OF PUBLIC
PROSECUTIONS, BLOEMFONTEIN
1
See
in this regard
Matshona v S
[2008]
4 All SA 68
(SCA) paras 3-8,
Kriel v S
2012 (1) SACR 1
(SCA) para 11,
AD
v S
(334/2011)
[2011] ZASCA 215
(29
November 2011) paras 3-8.
2
In
imposing sentence in respect of the other six accused (who were all
convicted on the same five charges as the appellant), the
regional
magistrate had ordered that some of the sentences would run
currently with the other sentences imposed, thus resulting
in
considerably lighter sentences.