IN THE HIGH COURT OF SOUTH AFRICA
FREE.STATE DIVISION, BLOEMFONTEIN
1
Reportable / Not reportable
Case no: 68/2017
In the matter between
LENKOETSE STEPHEN NTHAKO APPLICANT
and
THE STATE RESPONDENT
Neutral citation: Lenkoetse Stephen Nthako v The State (68/2017)
Coram:
Heard:
Delivered:
MpamaAJ
This application was determined on the basis of written arguments instead
of an oral hearing.
This judgment was handed down electronically by circulation to the
parties' representatives by email and released to SAFLII. The date
and time for hand-down is deemed to be 16h00 on 06 December
2024.
Summary: Application for leave to appeal - condonation - reasonable
prospects of success
2
ORDER
Condonation for the late filing and prosecution of the application for leave to appeal is
refused.
JUDGMENT
Mpama AJ
[1] The applicant seeks leave to appeal against the sentence of Phalatsi AJ,
condonation for the late filing and prosecution of the application for leave to appeal (the
application).
[2] In his notice of appeal, the applicant appeals only against sentence, however the
heads of argument filed on behalf of the applicant and the respondent deal with both
conviction and sentence. I propose to deal only with sentence, since the notice of appeal
only notes the grounds upon wh ich the trial court's sentence is attacked and is silent on
conviction.
[3] On 9 No vember 2017, the applicant was convicted and sentenced as follows:
(i) Count 1: housebreaking w ith intent to assault and assault with intent to do
grievous bodily harm - 4 years' imprisonment
(ii) Count 3: murder in terms of the provisions of s 51 (1) of the Criminal Law
Amendment Act 105 of 1997 - 23 years' imprisonment and
(iii) Count 4: arson - 7 years imprisonment.
[4] In terms of s 280(2) of the Criminal Procedure Act 51 of 1977, as amended (the
CPA) , sentences on counts 1, 2 and 4 were ordered to run concurrently with the sentence
on count 3. The effective term of imprisonment amounted to 23 years.
[5] As envisaged. in s 316(2)(b) of the CPA , the record of the court's judgment and
3
sentencing proceedings were placed before me on 29 October 2024. The applicant and
respondent filed their heads of argument on 13 and 18 November 2024 respectively. The
parties agreed to dispense with the hearing of oral arguments and requested the court to
decide the application on the papers. I acceded to the request and accordingly, the
application was considered in chambers and on the papers, including the written heads
of argument.
(6) From the outset it is necessary. to deal with the applicant's condonation
application. An application for leave to appeal must be made within 14 days after the
imposition of sentence or within an extended period, as the court may, on application and
for good cause shown, condone an application that has been filed late.1 In Melane v
Santam Insurance Co Ltcf2 the court said:
'In deciding whether sufficient cause has been shown , the basic ·principle is that the Court has a
discretion, to be exercised judicially upon the consideration of all facts, and in essence it is a
matter of fairness to both sides. Among the facts usually relevant are the degree of lateness the
explanation thereof, the prospects of success, and the importance of the case. Ordinarily those
factors are interrelated: they are not individually decisive, for that wou ld be a piecemeal approach
incompatible with a true discretion, save of course that if there are no prospects of success there
would be no point in granting condonation. Any attempt to formulate a rule of thumb would only
serve to harden the arteries of what should be a flexible discretion. What is needed is an objective
conspectus of all the facts. Thus, a slight delay and a good explanation may help to compensate
for prospects of success which are not strong. Or the importance of the issue and the strong
prospects of success may tend to compensate for a long delay. And the respondent's interest of
the in the finality must not be overlooked. '3
[7] In Grootboom v National Prosecuting Authorit0 the Constitutional Court stated that:
'It is now trite that condonation cannot be had for the mere asking. A party seeking condonation
must make out a case entitling it to the court's indulgence. It must show sufficient cause. This
requires a party to give a full explanation for the non-compliance w ith the rules or court's
directions. Of great significance, the explanation must be reasonable enough to excuse the
default.'5
[8] The application for condonation is not opposed by the respondent. The notice of
motion is dated 13 August 2024, an affidavit in support of the application for condonation
1 Sees 316(1)(bJ of the CPA .
2 Melane v Santam Insurance Co Ltd 1962 (4) SA 531 (A).
3 Ibid at 532C.
4 Grootboom v Na tional Prosecuting Authority {2013] ZACC 37; 2014 (2) SA 68 (CC).
5 Ibid para 23.
4
was commissioned on 18 October 2023 and the application was filed with the office of
the registrar on 23 September 2024. The reasons for the delay have not been dealt with
so much comprehension by the applicant in his affidavit. He stated that it has always been
his intention to lodge this application and the delay was beyond his control. He did not
explain what occa•sioned the delay, save to mention that 'I should have received a letter
after my judgment explaining my rights and I waited for such letter without any success.'
What compounds the applicant's explanation is that he does not to tell from whom he was
supposed to obtain the 'letter', why was the 'letter' not provided at an opportune time and
whether he took any measures to obtain the 'letter' when it was clearly not forthcoming.
If it has always been his intention to appeal, the suggestion is that he has always known
of his rights to appeal and I cannot fathom why a letter would stand in his way. Whether
he received the letter or not, and when, is lacking in his affidavit.
[9] In addition, there is no explanation as to what happened between 18 October
2023 when the affidavit was commissioned and 23 September 2024 when the application
was filed in the registrar's office. The applicant has failed to give a clear demonstration of
why it took him six years and ten months to bring this application or, at the minimum , what
occasioned a delay between when his affidavit was signed and the filing of the application
in the registrar's office. His explanation does not, at all, account for the inordinate period
of the delay. The applicant seeks an indulgence from the court and has a duty to fully
explain reasons for the delay.
[10) Nevertheless, this is not the only factor that this court must consider on whether
condonation can be granted or not. In addition, a court must consider the prospects of
success on appeal. If there exist good prospects of success on appeal, a court must be
inclined towards granting condonation in spite of a poor or insufficient explanation for the
delay. See Mntambo v S6 where Weiner AJA held:
'In dealing with this issue, it is useful to refer to the judgment in this Court in Mulaudzi v Old Mutual
Life Assurance company (SA) Limited, where Ponnan JA stated that:
"Factors wh ich usually weigh with this court in considering an application for condonation include
the degree of non-compliance, the explanation therefor, the importance of the case, a
respondent's interest in the finality of the judgment of the court below, the convenience of this
court and the avoidance of unnecessary delay in the administration of justice.
In applications of this sort the prospects of success are in general important, although not
decisive, consideration. As was stated in Rennie v Kamby Farms (Pty) Ltd, it is advisable, where
6 S v Mntambo (2021) ZASCA 17.
5
application for condonation is made, that the application should set forth briefly and succinctly
such essential information as may enable the court to assess an applicant's prospects of
success. "'7
[11] Gleaned from the court's judgment, the following facts gave rise to the applicant's
conviction: The applicant is the father of the deceased's children. He was still involved in
a romantic relationship with the deceased at the time of her demise. The applicant arrived
at the deceased's residence, in search of the deceased and Mr Zachariah Muletli
Tlhabane, a complainant, on the charges of housebreaking with intent to assault and
assault with intent to do grievous bodily harm as well as arson. The applicant suspected
that the deceased and Mr Tlhabane, despite them being cousins, were having a romantic
affair. The applicant found Mr Tlhabane's sister. He threatened to kill the deceased and
Mr Tlhabane if they did not end their relationship. Thereafter, he left the premises.
[12] At night, the applicant returned; this time armed with a panga. He kicked the door
of the shack occupied by Mr Tlhabane. When the door opened, he entered the shack and
struck Mr Tlhabane with a panga, injuring him on the head and hand. Mr Tlhabane ran to
his mother's house (in the same yard). The applicant left Mr Tlhabane's shack, proceeded
to where the deceased was, attacked her with a panga as well, and dragged her to the
street, accusing her of having a relationship with Mr Tlhabane. The applicant left the
injured deceased on the street, went back to the shack and burnt it down. Undeterred, he
proceeded to his sister's house which was not far from where the deceased's laid. On
arrival, he woke his sister and his 15-year-old child he shared with the deceased. He
invited them to come and see that he has killed the deceased. He took them to where the
deceased was and left them there.
[13) All these endeavors brought no satisfaction to the applicant as he went to the
deceased's parents' residence and invited the deceased's stepfather to 'come and collect
his daughter as he had already finished her off. The applicant took the deceased's
stepfather to where the deceased was. The deceased was taken to hospital and later
passed on.
[14] The applicant's grounds of appeal are, inter aHa, that the court a quo failed to
consider his personal circumstances and placed too much weight on aggravating
circumstances, although it found that there were substantial and compelling
circumstances which allowed for deviation from the minimum sentence, as well as that
7 Ibid para 3.
6
the sentence imposed is too harsh and induces a sense of shock.
[15] The applicant was convicted of murder on count 2. The prescribed sentence is life
imprisonment. The court found substantial and compelling circumstances, deviated from
the prescribed sentence and imposed 23 years imprisonment. On the charge of
housebreaking with intent to assault and assault, he was sentenced to four years'
imprisonment, and on arson, to seven years' imprisonment. These sentences were
ordered to run concurrently with the sentence on the charge of murder.
[16] What is aggravating is that the commission of the offences was well-planned. The
applicant arrived at the deceased's place during the day and threatened to kill the
deceased. The applicant returned in the evening armed with a dangerous weapon. A
domestic relationship existed between the applicant and the deceased. After the attack,
he dragged the deceased, his lover and the mother of his children and left her injured on
the street. He went to fetch his own child so that he can see his mother dying on the
street. He also brought the deceased's stepfather to see what he has done. Lastly, the
personal circumstances of the applicant were considered by the trial court, hence it
deviated from the prescribed sentence. My view is that there are no prospects of success
on appeal, the sentence imposed is not harsh or shockingly inappropriate.
[17] The applicant tendered an insufficient explanation for the delay in bringing this
application. I have also carefully considered whether there are reasonable prospects of
success on appeal and I cannot find any. Therefore, the applicant has failed to show good
cause warranting condonation of his late filing of this application.
ORDER
[18] In the premises, I make the following order:
Condonation for the late filing and prosecution of the application for leave to appeal is
refused.
Appearances
For the Applicant:
Instructed by:
For the Respondent:
Instructed by:
Mr PL Van Der M erwe
Legal Aid SA
Bloemfontein
Adv M. Strauss
Office of the Director of Public Prosecutions
Bloemfontein
7