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[2017] ZASCA 100
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Mathekola v S (487/2016) [2017] ZASCA 100 (21 August 2017)
THE
SUPREME COURT OF APPEAL OF SOUTH AFRICA
JUDGMENT
Not
Reportable
Case
No:487/2016
In
the matter between:
JAMES
SELLO
MATHEKOLA
APPLICANT
and
THE
STATE
RESPONDENT
Neutral
citation:
Mathekola
v State
(487/2016)
[2017] ZASCA 100
(21
August 2017)
Coram:
Lewis and Mathopo JJA, Plasket, Tsoka
and Schippers AJJA
Heard:
16 August 2017
Delivered:
21 August 2017
Summary
:
Section 17(2)(
f
)
of the
Superior Courts Act 10 of 2013
– reconsideration of
dismissal of petition for leave to appeal – co-accused of
applicant having been granted leave
to appeal on petition and having
succeeded in his appeal – applicant’s prospects of
success on appeal strong –
leave to appeal granted.
ORDER
Application
for reconsideration referred by Mpati P in terms of
s 17(2)(
f
)
of the
Superior Courts Act 10 of 2013
:
The
application succeeds and the order dismissing the applicant’s
petition for leave to appeal is varied to read:
‘
The
applicant is granted leave to appeal to the Gauteng Division of the
High Court, Pretoria against conviction and sentence in
respect of
counts 2, 4, 6 and 8.’
JUDGMENT
Plasket
AJA (Lewis and Mathopo JJA, Tsoka and Schippers AJJA concurring):
[1]
This is an application, brought by Mr James Sello Mathekola (the
applicant) for the reconsideration of the refusal of a petition
for
leave to appeal. It is brought in terms of
s 17(2)(
f
)
of the
Superior Courts Act 10 of 2013
.
[2]
The basic facts are these. On the night of 17 September 2005, a group
of armed men entered the home of the Swanepoel family
in Pretoria.
They forced four members of the family into the lounge where the
applicant guarded them while his comrades ransacked
the house in
search of items of value. One of the complainants had, prior to being
forced from her room, called the police. The
police arrived while the
robbers were still in the house. The robbers scattered but one,
accused 1 in the subsequent trial, was
arrested inside the house. The
applicant was one of the robbers who managed to escape. He was
arrested later.
[3]
The applicant was subsequently convicted, along with a co-accused, Mr
Peter Maphakela (who was accused 1), of four counts of
robbery with
aggravating circumstances (counts 1, 3, 5 and 7), four counts of
kidnapping (counts 2, 4, 6 and 8), the unlawful possession
of a
firearm (count 14) and the unlawful possession of ammunition (count
15). (A third accused was also charged and convicted of
less serious,
but related offences.)
[4]
Both accused were sentenced to 15 years imprisonment in respect of
each of counts 1, 3, 5 and 7, to seven years imprisonment
and one
year of imprisonment respectively in respect of counts 14 and 15. All
of these sentences were ordered to run concurrently.
They were
sentenced in respect of each of counts 2, 4, 6 and 8 to five years
imprisonment. These sentences were ordered to run
concurrently with
each other. The result was that the two accused were sentenced to
effective terms of 20 years imprisonment.
[5]
Both accused applied unsuccessfully for leave to appeal. Their
petitions to the Gauteng Division of the High Court, Pretoria
were
also unsuccessful. In this court, Mr Maphakela’s petition was
successful. He was granted leave to appeal to the Gauteng
Division of
the High Court, Pretoria against the convictions and sentences in
respect of counts 2, 4, 6 and 8. The applicant’s
petition,
considered by a different pair of judges to those who considered Mr
Maphakela’s petition, was unsuccessful.
[6]
On learning of Mr Maphakela’s success, the applicant applied to
the President of this court for the reconsideration of
the refusal of
his petition.
Section 17(2)(
f
)
of the
Superior Courts Act provides
that in circumstances such as
this, the President of this court ‘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 and, if
necessary, variation’.
[7]
Mpati P referred the refusal of the applicant’s petition to
this court for reconsideration. In so doing, he found exceptional
circumstances to be present.
[1]
[8]
Mr Maphakela’s appeal succeeded before a full court of three
judges of the Gauteng Division of the High Court, Pretoria.
In the
judgment, Davis AJ held that the kidnapping convictions amounted to a
duplication of convictions. The intention of the robbers,
he said,
was not to kidnap the Swanepoel family but to enable them to
dispossess their victims of their property: the sole intention
throughout was to rob.
[2]
[9]
In order to be granted leave to appeal, an applicant must convince a
court ‘on proper grounds that he has prospects of
success on
appeal and that those prospects are not remote, but have a realistic
chance of succeeding’.
[3]
[10]
In this instance, the applicant’s prospects of success are
strong: he already has a full court decision in his favour
that would
have to be followed unless the court hearing his appeal is convinced
that the earlier judgment is clearly wrong. In
the nature of things,
that tends to occur but rarely. Special circumstances are present
because to refuse the applicant leave to
appeal, given his
co-accused’s success on appeal and the judgment in his favour,
would be unjust.
[11]
In the result, I make the following order.
The
application succeeds and the order dismissing the applicant’s
petition for leave to appeal is varied to read:
‘
The
applicant is granted leave to appeal to the Gauteng Division of the
High Court, Pretoria against conviction and sentence in
respect of
counts 2, 4, 6 and 8.’
_______________
C
PLASKET
Acting
Judge of Appeal
APPEARANCES:
For
the Appellant:
HL
Alberts
Instructed
by:
Justice Centre, Pretoria
Justice Centre,
Bloemfontein
For
the Respondent:
CP Harmzen
Instructed
by:
Director of Public Prosecutions, Pretoria
Director
of Public Prosecutions, Bloemfontein
[1]
S v
Mathekola
(487/2016)
[2016] ZASCA 106
(14 July 2016) para 3.
[2]
Maphakela
v S
(A257/2016)
ZAGPHC 978 (29 November 2016) para 3.7.
[3]
S v
Smith
2012
(1) SACR 567
(SCA) para 7.