2
2. Count 2 – Robbery with aggravating circumstances, read with the
provisions of s51(2) of the CLAA; and
3. Count 3 – Attempted Theft.
On 3 October 2024 I sentenced the applicants as follows:
1. Count 1: - Life imprisonment;
2. Count 2 – Fifteen (15) years imprisonment; and
3. Count 3 – Six (6) months imprisonment.
The applicants, represented by the same legal representatives they had during
the trial, now seek leave from this Court to appeal all these convictio ns and
sentences. Applicant 2 further seeks condonation for the late noting of her
application. Although the applications for leave to appeal are fiercely opposed by
the respondent, the application for condonation is not opposed. Bearing the latter
in mind I will, in the interests of justice and a speedy outcome, grant the
application for condonation.
[2] Leave to appeal is governed by section 17(1)(a) of the Superior Courts Act1
which came into operation on 23 August 2013. The section provides that leave
to appeal may only be given where the judge is of the opinion that the appeal
would have a reasonable prospect of success, or where there is some other
compelling reason why the matter should be heard.
[3] After much debate in various judgments as to whether the test for leave to appeal
had become more onerous since the codification thereof in s17 of the S uperior
Courts Act , the Supreme Court of Appeal set out the manner in which these
applications should be considered in Ramakatsa and Others v African National
Congress and Another2. In Ramakatsa the SCA re-affirmed its earlier finding in
S v Smith3 where it held the followi ng:
1 Act 10 of 2013
2 Ramakatsa and Others v African Noational Congress and Another (724/2019) [2021] ZASCA
31 (31 March 2021)
3 S v Smith 2012 (1) SACR 567 (SCA)
3
‘What the test for reasonable prospects of success postulates is a dispassionate
decision, based on the facts and the law that the Court of Appeal could
reasonably arrive at a conclusion different to that of the trial court. In order to
succeed, theref ore, the appellant must convince this 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 success. More is required to be established
than that there is a mere possibili ty of success , that the case is arguable on
appeal or that the case cannot be categorised as hopeless. There must, in other
words, be a sound, rational basis for the conclusion that there are prospects of
success on appeal.’
[4] Based on the afore -going I ther efore consider this application on the ground that
leave should be granted if a reasonable prospect of success is shown, or if there
are some other compelling reasons for the appeal to be heard.
[5] Only counsel for the 1st applicant and counsel for the respo ndent filed heads of
argument. There were no papers filed on behalf of the 2nd applicant and her
application was heard on a viva voce basis only.
[6] The grounds for appeal raised by the applicants are in essence the same and
are based on alleged misdirection s by this Court as to some of the facts as well
as the applic ation of the law. It is alleged that the Court misdirected itself by
finding that ‘items’ were used in bringing about the death of the deceased in stead
of just one item ; that the accused had amp le time to reflect and desist with what
they were doing; that the 1st applicant was at the deceased’s residence with the
purpose to render sex work only; that the photographs taken of the scene
corroborated the version of the 1st applicant by depicting a u sed condom in the
deceased’s bedroom, to which the Court never referred to in its judgment; that
the Court never made any finding as to 1st applicant’s version that she was
injured as a result of an altercation between her and the deceased; and that the
accused contradicted each other.
[7] In addition to the alleged misdirections with regards to the facts, it was also
alleged that the Court misdirected itself with regards to the law. On this aspect it
was alleged that the Court misdirected itself by finding tha t the murder was
4
premeditated or planned; that the State did not have to establish all the elements
of the offence; that the Court failed to explain the doctrine of common purpose to
the accused; that the Court did not deal with each and every prerequisite for
common purpose in its judgment; and that the Court failed to adhere to the
principles of sentence by not considering the circumstances of the crimes and by
placing to much weight on the status and personal circumstances of the
deceased and his family.
[8] For purposes of completeness I state again that the application for leave to
appeal was opposed by the respondent on the merits thereof. The respondent
alleged that the Court did not misdirect itself in respect of any fact or the
application of the law. T he respondent argued that the convictions and sentences
were sound in law and that the application should therefore be dismissed.
[9] Having read the papers filed and heard the legal representatives for all the
parties, and having considered the arguments adv anced in this application I do
not deem it necessary to deal with each alleged misdirection on its own or in any
great detail. I have dealt in the judgment with the charges faced by the accused
and their responses thereto. Neither of the accused raised any defence. They
both attacked the State’s case on the basis of a bare denial of any wrong -doing.
At the end of the trial the Court was left with three versions as to what happened
in the deceased’s house. The two accused gave contradictory and mutually
irreconcilable versions as to what happened. The State could only produce
circumstantial evidence from which the Court had to draw inferences.
Considering all the strengths and weaknesses in the versions placed before me,
I concluded that the State’s version had to triumph over that of the accused. I
gave full reasons in my judgment for reaching this conclusion. With regards to
the application of the law to the facts I provided authority in the form of caselaw
which is binding on me. Similarly, I gave compreh ensive reasons, with references
to authority, for the sentences I imposed on the accused. After considering my
judgments on the merits and sentences in light of the grounds of appeal raised
by the applicants, I am not convinced that either of the applicant s have shown a
real prospect of success on appeal. It therefore stands to reason that the
applications before me should be dismissed.
6
Date of hearing : 15 November 2024
Delivered : This judgment was handed down electronically by circulation to the parties’
representatives via e-mail, by being uploaded to CaseLines and by release to SAFL II.
The date and time for hand -down is deemed to be 10h00 on 07 February 2025 .