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ORDER
1. Condonation is granted for the late filing of the application for leave to appeal.
2. The application for leave to appeal is dismissed.
3. Each party is ordered to pay their own costs.
JUDGMENT
MLAMBO, JP
Introduction
[1] This is an application for leave to appeal accompanied by an application for
condonation for the late initiation of the application . The application for leave to appeal
is in terms of Section 316 of the Criminal Procedure Act 51 of 1977 (the Criminal
Procedure Act ).
[2] The applicants are Mr Fox Shikunwela Sithole and Mr Eddie Ubisi (“the
applicants ”). They were accused numbers 1 and 2 respectively , in the trial
proceedings , in this Court , in a matter that was presided over by Coetzee J . Judge
Coetzee retired some years ago and is not available to hear the application. I took on
the responsibility to hear the application in line with the proviso in section 316 (2)(a) of
the Criminal Procedure Act . I must also mention that the trial court file as well as the
record have not been found within the Court archives , despite diligent search . The
Judgments on conviction and sentence , by Coetzee J , were provided by the applicants
in this application. Despite the absence of the Court file and trial record, I don’t think
this prejudiced the applicants, in any way.
[3] The factual matrix of the matter set out in what follows, is furnished by the
applicants and there is little controversy in that regard between them and the State.
[4] In 2006 , the applicants were convicted for murder , attempted murder and
aggravated robbery in the KwaZulu -Natal Division of the High Court, sitting in Pongola
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by Combrink J . On 29 June 2012, they were sentenced to life imprisonment , by that
Court . They lodged an appeal against their conviction and sentence. In an unrelated
matter, t hey were subsequently , in the s ame month, convicted on a charge of
attempted robbery , by this Court (Coetzee J) and on 20 July 2012, the learned Judge
sentenced them to eight years imprisonment.
[5] The appellants sta te that after the passing of their sentence , their legal
representative at the time, notified Coetzee J that they intended to apply for leave to
appeal the sentence imposed. They allege that Judge Coetzee opined that no leave
was necessary as the sentence imposed by this Court would automatically r un
concurrently with the life sentence imposed by the KwaZulu -Natal Division. They
pointed out that upon hearing this, they abandon ed their intention to seek that order.
This allegation is backed by no evidence , documentary or otherwise. What is clear
from the Judgment handed down by Coetzee J is that when he convicted and
sentenced the applicants, he was aware of the applicants ’ conviction and sentence
imposed , by the KwaZulu -Natal High Court .
[6] Their appeal against the life sentence was successful in the Supreme Court of
Appeal (the SCA) , which reduced their sentence to twenty -five years. They state that
during 2023 , they were informed by Correctional Ser vices officials that their eight -year
sentence became added to their sentence of twenty -five years and as such they were
liable to serve a total of thirty -three years. It is this eventuality that has spurred the
applicants to now approach this Court, with the present application. They allege that
they sought legal advice but were unsuccessful. They then decided to launch this
application and were assisted by a fellow inmate who is a Master of Law s graduate.
They were however represented by Counsel during the hearing of th is application.
[7] The app licants acknowledge that that this leave to appeal applicati on was filed
late hence th e application for condonation . They state that their circumstances are
unique in that Judge Coetzee ’s intention was to order that their sentence run
concurrently with the sentence of life imprisonment , but with the reduction of th at
sentence, the Judge ’s intention was thwarted. They submit that they seek to have that
intention adjusted in this application . They submit that even without any proof of Judge
Coetzee ’s intention, their cumulative sentence of thirty -three years is shocki ng and
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inappropriate and induces a sense of shock. Such a sentence , they say, would amount
to an inhumane sentence that cannot be countenanced if one takes on board the
totality principle mentioned below and under our constitutional order.
[8] The Respondent does not oppose the condonation application. However, the
application for leave to appeal is oppose d. I do not deem it necessary to traverse the
condonation aspect as it is not contested. I n the applicants ’ favour is the fact that they
became aware in 202 3 that their eight -year sentence would not run concurrently with
the twenty -five-year sentence and I accept their explanation of the efforts they initiated
to initiate th is appli cation .
Leave to appeal
[9] The procedures relating to appeals in the criminal procedure context are found
in section 316. Section 17 of the Superior Courts Act 10 of 2013 governs the
considerations applicable regarding applications for leave to appeal in Superior
Courts . Section 17(1)(a) provides :
“(1) Leave to appeal may only be given where the judge or judges concerned are of the
opinion that -
(a) (i) the appeal would have a reasonable prospect of success; or
(ii) there is some other compelling reason why the appeal should be heard, including
conflicting judgments on the m atter under consideration. ”
[10] The meaning of this provision and the test applicable are the subject of a long
line of cases which I do not deem nece ssary to traverse. In fact, the S CA in MEC for
Health, Eastern Cape v Mkhitha1 held that “section 17(1)(a) of the Superior Courts
makes it clear that leave to appeal may only be given where the judge concerned is of
the opinion that the appeal would have a reasonable prospect of success; or there is
some other compelling reason why it should be heard. ”2
[11] In Mont Chevaux Trust v Goosen ,3 the Land Claims C ourt stated :
1 [2016] ZASCA 176.
2 Id at para 16.
3 2014 JDR 2325 (LCC).
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“It is clear that the threshold for granting leave to appeal against a judgment of a High
Court has been raised in the new Act. The former test whether leave to appeal should
be granted was a reasonable prospect that another court might come to a different
conclusion, see Van Heerden v Cronwright & Others 1985 (2) SA 342 (T) at 343H. The
use of the word "would" in the new statute indicates a measure of certainty that another
court will differ f rom the court whose judgment is sought to be appealed against. ”4
[12] The test of a reasonable prospect of success dictates that a court will refuse a
leave to appeal application in circumstances where there is absolutely no chance of a
successful appeal, or w here the court is certain beyond reasonable doubt that the
appeal will fail .5 Furthermore, when a court consider s an application for leave to
appeal , the court should not view it as a challenge to the court concerned to justify its
decision. The court sho uld rather reflect dispassionately upon its decision and decide
whether a higher court could reasonably come to a different conclusion .6
[13] In the context of sentencing, as highlighted in S v McLaggan ,7 a Court
considering an application for leave to appeal against sentence will bear in mind that
an appeal Court is generally reluctant to interfere with the trial Court's discretion in
sentencing. However, where the exercise of such discretion depends on the finding s
of fact regard ing the existence of substantive and compelling circumstances , and the
court hearing the application is of the view that another court may come to a different
finding in th at regard, leave should be granted .8
Merits
[14] The applicants have not stated w hat aspects of the sentence imposed by Judge
Coetzee, are under attack in this application. Their true objective in this application is
to obtain an order that their sentence of eight years, be ordered to run concurrently
with the sentence imposed by the SCA, when their appeal against the life sentence
4 Id at para 6.
5 See Rex v Ngubane1945 AD 185 at 186 –7 or Oliphant and Another v S [2021] ZAGPPHC 691 at
para 7.
6 See S v Mabena [2006] ZASCA 178; [2007] 2 All SA 137 (SCA); 2007 (1) SACR 482 (SCA) at para
22.
7 [2012] ZAECGHC 78; 2013 (1) SACR 267 (ECG).
8 Id at para 16.
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succeeded. As I have said, no misdirection of any sort has been pointed out by the
applicants against Coetzee J when he imposed th e eight -year sentence. Not only are
the applicants not asserting that the sent ence was inappropriate or shocking , they
have not challenged any aspect of Coetzee J ’s reasoning in imposing that sentence.
As I will show in the following paragraphs , Coetzee J can also not be faulted in any
way for not ordering that sentence run concurre ntly with the life sent ence.
[15] This requires me to consider the application of a number of provisions in the
Criminal Procedure Act, which are relevant to the applicants ’ real objective. Section
280 of the Act addresses cumulative or concurrent sentences . The following
subsections are relevant in casu :
“(1) When a person is at any trial convicted of two or more offences or when a person
under sentence or undergoing sentence is convicted of another offence, the court
may sentence him to such several punishments for such offences or, as the case
may be, to the punishment for such other offence, as the court is competent to
impose.
(2) Such punishments, when consisting of imprisonment, shall commence the one
after the expiration, setting aside or remis sion of the other, in such order as the
court may direct, unless the court directs that such sentences of imprisonment
shall run concurrently. ”9
[16] In light of this provision, the default position is that sentences run consecutively
unless the Court directs o therwise. However, this section has been interpreted in line
with the "totality principle," which aims to prevent unduly harsh cumulative sentences
and protect human dignity . This is in accordance with the judgment of S v Chake ,10
where Murray AJ explained that the aim of section 280 is to protect human dignity by
applying the “totality principle ”, stating also that, disregar ding this principle may lead
to inhumane and unfair sentences.11
9 Section 280(1)(2).
10 [2015] ZAFSHC 185; 2016 (2) SACR 309 (FB) .
11 Id at para 8.
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[17] Thus, t he principle behind section 280, serves as a preventative measure to
avoid the severe cumulative effect where more than one sentence is imposed ,12 a
concern that was echoed by the SCA in Zondo v S ,13 where the court caution ed
against sentences that are excessively long . The court said th is kind of sentences only
serve to appease public opinion, rather than achieving the aims of punishmen t.
[18] Section 39(2)(a) of the Correctional Services Act 111 of 1998 ,14 and section
280 of the Criminal Procedure Act, set cumulative sentencing as the standard , but on
the other hand, section 39(2)(a)(i) provides that a determinate sentence runs
concurrently with a life sentence . It appears that the alleged obiter dictum statement
by Coetzee J was based on this provision . However, this provision was of limited
duration following the app licants ’ successful appeal of the life sentence.
[19] I have already pointed out that the applicants have not pointed out any
misdirection by Coetzee J when he imposed the eight -year sentence. In fact, the
learned Judge could not order that the eight -year sentence run concurrently with the
12 See Mutsweni v S [2021] ZAGPPHC 532 where the court was referencing Terblanche (The Guide to
Sentencing in South Africa (2013), Chapter 7 at para 2.2.1), who state d that “When a sentence is
impo sed for each offence, a cumulative effect may develop. In other words, the combined punishments
may become too severe. This was well explained by Reynolds J in S v Mpofu[3] : “in all multiple crime
cases the courts pay regard to what Thomas describes as ‘t he totality principle’. (The Court) must look
at the totality of the criminal behaviour and ask itself what is the appropriate sentence for all the
offences.’ … In effect, the accused normally receives a ‘discount’ for bulk offending, particularly where
the various counts are similar in nature, for the imposition of a separate and consecutive sentence for
each individual charge would result in a very high aggregate penalty which would be disproportionate
to the moral blameworthiness of the accused having re gard to his line of conduct as a whole.’”
13 [2013] ZASCA 51 at para 9 .
14 This section provides: “(2) (a) Subject to the provisions of paragraph (b), a person who receives more
than one sentence of incarceration or receives additional sentences while serving a term of
incarceration, must serve each such sentence, the one after the expiration, setting aside or remission
of the other, in such order as the National Commissioner may determine, unless the court specifically
directs otherwise, or unless the court directs such sentences shall run concurrently but -
(i) any determinate sentence of incarceration to be served by any person runs concurrently with a
life sentence or with a sentence of incarceration to be served by such person in consequence o f being
declared a dangerous criminal;
(ii) one or more life sentences and one or more sentences to be served in consequence of a person
being declared a dangerous criminal also run concurrently;
(iii) no placement or release of a dangerous crim inal may take place other than in terms of section
286B of the Criminal Procedure Act; and
(iv) any determinate sentence of incarceration to be served by any person runs concurrently with a
sentence of imprisonment to be served by such person in conse quence of a person being declared a
habitual criminal: Provided that where the determinate sentence is longer than 15 years or where such
sentence is imposed after a person is declared a habitual criminal, the balance of such determinate
sentence must be s erved after the term of 15 years has been completed.”
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life sentence . In terms of section 280 of the Criminal Procedure Act, the eight -year
sentence automatically ran concurrently with the life sentence.
[20] This is not a case where leave to appeal is required or necessary. Th is is so as
no misdirection has been pointed on the part of Coetzee J. In my view, it was at the
stage when the twenty -five year sentence was imposed that a decision should have
been made whether there would be concurrence in the sentences. When the
applic ants’ life sentence w as before the SCA, that Court not only had the power to
reduce the life sentence (which it did to 25 years) but also to determine whether any
other sentence should run concurrently or consecutively with it. Had the applicants
asked, th e SCA could have —consistent with s 39(2)(a)(i) of the Correctional Services
Act—ordered that the eight -year term imposed by Coetzee J run concurrently. The
SCA appeal was their only “live” challenge to their sentences. That proverbial horse
has now bolted. Permitting re -litigation of concurrency at this stage would undermine
the finality principle and encourage strategic silence on crucial sentencing issues.
[21] Clearly, this application is a non -starter. There is no basis for an application for
leave to appe al the eight -year sentence . By not seeking concurrent -sentence relief
before the SCA , the applicants lost the opportunity to have a higher Court address the
interplay between their various terms. In this Court now, no misdirection by Coetzee J
in imposing eight years has been pointed to , nor any error as to the concurrency
question. Absent a point of law or fact demonstrating that Coetzee J erred, nor any
error as to the concurrency question , the application must fail .
[22] In so far as costs are concerned, th e applicants were clearly ill advised to bring
this application. For that reason, I’m not inclined to award costs against them. An
appropriate order is that each party should pay its own costs.
Order
[23] In the result the following order is made:
1. Condonation is granted for the late filing of th e application for leave to
appeal .
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2. The application for leave to appeal is dismissed .
3. Each party is ordered to pay its own costs .
________________
D MLAMBO
JUDGE PRESIDENT
GAUTENG DIVISION OF THE HIGH COURT
Heard: 10 March 2025
Judgment : 22 May 2025
Appearances
For Applicant s: E Pako
instructed by Pako Law Chambers Inc.
For Respondent : AK Mathebula
instructed by the Office of the Director of Public
Prosecutions