THE SUPREME COURT OF APPEAL OF SOUTH AFRICA
JUDGMENT
Not Reportable
Case no: 708/2023
In the matter between:
KOBUS NEL APPLICANT
and
THE STATE RESPONDENT
Neutral citation: Nel v The State (708/2023 ) ZASCA 89 (12 June 2025 )
Coram: NICHOLLS JA and SALDULKER and DLODLO AJJA
Heard : 12 May 2025
Delivered : This judgment was handed down electronically by circulation to the
parties ’ representatives by email, publication on the Supreme Court of Appeal
website, and released to SAFLII. The date and time for hand down is deemed to be
12 June 2025 at 11h00 .
Summary: Reconsideration of application for special leave to appeal – s 17(2) (f) of
the Superior Courts Act 10 of 2013 – section not intended to afford disappointed
litigants a further attempt to procure relief – absence of exceptional circumstances –
application struck off the roll.
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ORDER
On application for reconsideration : referred by Petse DP in terms of s 17(2) (f) of
the Superior Courts Act 10 of 2013 :
The application is struck off the roll.
JUDGMENT
Saldulker AJA (Nicholls JA and Dlodlo AJA concurring):
Introduction
[1] The applicant, Mr Kobus Nel stood trial in the Specialised Commercial
Crimes Court sitting in the Regional Court for the District of Gauteng , Pretoria, (the
regional court) , and was convicted on 12 counts of theft, after he pleaded guilty.
Subsequent to his conviction, he was sentenced on 14 February 2022, as follows . On
counts 1, 2 and 4 to 12, for theft , which was taken together for purposes of sentence,
he was sentenced to 12 years ’ imprisonment . On count 3 for theft, he was sentenced
to 15 years ’ imprisonment. The sentences imposed on counts 1, 2 and 4 to 12 were
ordered to run concurrently with the sentence impo sed on count 3. His effective
sentence was 15 years ’ imprisonment.
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[2] The applicant applied to the regional court for leave to appeal against the
sentence that was imposed . This application was dismissed. The applicant then
petitioned the Gauteng Divisio n of the High Court , Pretoria (the high court) for leave
to appeal against the sentence. On 2 August 2022 , his petition was dismissed .
Thereafter , the applicant petitioned for special leave to appeal to this Court in terms
of s 16(1) (b) of the Superior Courts Act 2013 (the S uperior Courts Act), against the
judgment of the high court. This petition was dismissed on 19 January 2023 on the
grounds that no special circumstances existed meriting a further appeal to this Court .
[3] Aggrieved by the dismissal of his petition, t he applicant ap plied to the
President of this C ourt in terms of s 17(2) (f) of the S uperior Courts Act to reconsider
the application for special leave to appeal . On 29 September 2023, as per the order
of Petse DP, the application for reconsideration of this Court ’s decision to refuse
special leave was granted. Petse DP further referred the application for oral argument
in terms of s 17(2) (d) of the S uperior Courts Act, and the parties we re informed that
they should be prepared to argue the merits of the appeal, if special leave is granted.
This referral is now before us.
[4] As at the date of the referral by Petse DP, s 17(2) (f), read as follows:
‘The decision of the majority of the judges considering an application referred to in paragraph (b),
or the decision of the court, as the case may be, to grant or refuse the application shall be final:
Provided that the President of the Supreme Court of Appeal may, in exceptional circumstance s,
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. ’ 1
1 Section 17(2)( f) was amended by section 28 of the Judicial Matters Amendment Act 15 of 2023 which came into
effect on 3 April 2024, and reads as follows ‘The decision of the majority of the judges considering an application
referred to in paragraph (b), or the decision of the court, as the case may be, to grant or refuse the application shall be
final: Provided that the President of the Supreme Court of Appeal may, in exceptional circumstances , where a grave
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[5] The issue before us is whether there are any exceptional circumstances
warranting a reconsideration of the decision on petition. Courts have been reluctant
to lay down a general definition of what might constitute ‘exceptional
circumstances ’. Axiomatically , the phrase exceptional circumstances must connote
something extraordinary or unusual. It might include a substanti ve point of law or
any new or further e vidence that has come to light after the petition has been
considered and determined, which warrant s a remedy or a redress, and which ,
without leave, may result in a grave injustice or bring the administration of justice
into disrepute . In Cloete and Another v S and A Similar Application , the
Constitutional Court put it aptly thus:
‘The proviso in s 17 (2)(f) performs the function of a safety -net, giving the President the power to
intervene, in order to cure errors or mistakes, prevent an injustice or where a failure to intervene
would result in the administration of justice being brought into disrepute. ’2
[6] A decade ago, Mpati P, i n Avnit v First Rand Bank Ltd (Avnit ),3 stated in
pellucid prose that:
‘Prospects of success alone do not constitute exceptional circumstances. The case must truly raise
a substantial point of law, or be of great public importance or demonstrate that without leave a
grave injustice may result. Such cases will be likely to be few and far between because the judges
who deal with the original application will readily identify cases of that ilk. But the power under
s 17(2)( f) is one that can be exercised even when special leave has been refuse d, so “exceptional
circumstances ” must involve more than satisfying the requirements for special leave to appeal.
failure of justice would otherwise result or the administration of justice may be brought into disrepute, 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. ’
2 Cloete and Another v S and a Similar application [2019] ZACC 6; 2019 (2) SACR 130 (CC) para 43.
3 Avnit v First Rand Bank Ltd [2014] ZASCA 132 ; 2014 JDR 2014 (SCA) .
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The power is likely to be exercised only when the President believes that some matter of
importance has possibly been overlooked or grave injustice will otherwise result .’4
[7] In Liesching II, the Constitutional Court said that:
‘. . ‘[S]ection 17(2 )(f) is not intended to afford disappointed litigants a further attempt to procure
relief that has already been refused. It is intended to enable the President to deal with a situation
where otherwise injustice might result and does not afford litigants a para llel appeal process in
order to pursue additional bites at the proverbial appeal cherry. ’5
[8] More recently, in Bidvest Protea Coin Security (Pty) Ltd v Mabena ,6 this C ourt
said that:
‘. . . Rather , exceptional circumstances are referenced as an objective state of affairs that must exist
as a predicate for the exercise of the power by the President. If the predicate does not exist, then
this Court has no competence to engage upon a reconsideration of the decision on petition. The
President ’s referral cannot invest this Court with jurisdiction to reconsider the decision on petition,
if the jurisdictional predicate for such consideration is absent. ’7
[9] The foregoing cases reiterate the ju risprudence that in relation to s 17(2) (f),
the threshold requirement of the existence of exceptional circumstances is a
jurisdictional fact that has to be met first.8 Importantly, in Avnit , Mpati P carefully
examined the meaning of ‘exceptional circumstances ’ and concl uded that the referral
to this C ourt follow s upon the exercise of power of the President of this C ourt, which
4 Ibid paras 6 and 7. See also S v Liesching [2016] ZACC 41; 2017 (2) SACR 193 (CC) (Liesching I) ; S v Liesching
and Others [2018] ZACC 25; 2019 (4) SA 219 (CC) (Liesching II) ; and Motsoeneng v South African Broadcasting
Corporation S OC Ltd and Others [2024] ZASCA 80 ; 2024 JDR 2195 (SCA) .
5 Liesching II para 13 9.
6 Bidvest Protea Coin Security (Pty) Ltd v Mabena [2025] ZASCA 23 ; 2025 (3) SA 362 (SCA) .
7 Ibid para 15.
8 See also S v Lorenzi [2025] ZASCA 58 ; 2025 JDR 2015 (SCA) ; Ekurheleni Metropolitan Municipality v Business
Connexion Pty Ltd [2025] ZASCA 41 2025 JDR 1488 (SCA) ; Tarentaal Centre I nvestments (Pty)Ltd v Beneficio
Developments [2025] ZASCA 38 ; 2025 JDR 1461 (SCA) paras 4 -7, S v Mbatha [2020] ZASCA 102 ; 2020 JDR 1884
(SCA) ; Manyike v S [2017] ZASCA 96 para 3.
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is ‘likely to be exercised only when the President believes that some matter of
importance has possibly been overlooked or grave injustice wi ll otherwise result .’9
Thus, the effect of the amendment to s 17(2) (f), does not change the essential
question before this C ourt.10
Analysis
[10] I turn now to consider , whether the applicant has established exceptional
circumstances. The counsel for the applicant , Mr Alberts accepted that they bore the
onus of establishing the existence of exceptional circumstances that permit of the
reconsideration of the decision on petition.
[11] Regrettably, before us, counsel for the applicant, sought to contend that the
following factors , namely, the previous convictions ; the time spent in custody ; the
absence or prese nce of remorse by the applicant ; the health challenges facing the
applicant ; the proportionality of the sentence individually and cumulatively
amou nted to exceptional circumstances that warranted a reconsideration and
possible variation of th is Court’s order. However, all of these contentions ha ve
already been considered and rejected by other judicial fora in this matter . In a
detailed judgment by the regional court o n sentence , substantial and compelling
circumstances were considered and rejected . In the high court leave to appeal was
sought and refused . In this Court two judges dismissed the application for leave to
appeal.
9 Avnit para 7. See also Liesching II para 138 .
10 Bidvest para 10, fn 3.
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[12] The sole focus of Mr Alberts ’ conte ntions w as to rehash the arguments on
sentencing that had already been advanced before the regional court , the high court
and the two judges who dismissed the application for special leave to appeal in this
Court .11 In doing so, he misconceived the true nature of the enquiry. He did not
appreciate that the requirement of the existence of exceptional circumstances is a
jurisdictional fact that had to be met first, and that absent exceptional circumstances,
the appli cation must fail.
[13] The well -reasoned and detailed judgment of the regional court magistrate
cannot be faulted. The applicant was convicted of 12 counts of theft of money to the
value of about R3.9 million . He lured various complainants with a business plan and
a capital venture agreement, promising them repayment , with interest , on their
investments, within a short period of time. The moneys that were entrusted to the
applicant were misappropriated for his own personal use .
[14] Significantly, t he applicant already had previous convictions for theft, when
he committed the first four counts of theft in 2008 and 2009. In 1993, he was
convicted on three counts of fraud, and sentenced to a suspended sentence, and a
further three years of correctional supervision in terms of s 276(1) (h) of the Criminal
Procedure Act 51 of 1977. The court also ordered compensation to be paid. In May
2010, he committed fraud , for which he was sentenced to a fine of R1 500 or t wo
years ’ imprisonment in 2013. In the matter before us h e was charged in 2016 with
the first four counts of theft, and pleaded not guilty . The trial lasted four years and
the presiding officer then passed away. Whilst he was on bail, in respect of this trial ,
the applicant committed a further eight counts of theft, counts 5 to 12. Thus when
11 Du Preez N O v Member of Executive Council for Health & Social Development of the Eastern Cape Province
[2024] ZASCA 147 ; 2024 JDR 4693 (SCA) paras 29 and 42.
8
the trial began de novo , the applicant faced 12 counts of theft. The State elected to
prosecute the applicant for the initial four counts as well as the eight new counts.
[15] The picture that emerges of the applicant is that of a fraudster who has a
propensity to commit white -collar crimes. It is clear that he did not take
responsibility for any of his past criminal conduct. He deceived investors with
promises of easy mon ey over a period of twelve years unabated . Of material
relevance is that whilst he was on bail, between 2016 and 2020, the applicant
committed eight more counts of theft. He was clearly unremorseful and brazen.
[16] Mr Alberts contended that the sentence s imposed on the applicant warranted
interference on the grounds of proportionality , and that t aking into account
comparable cases where lighter sentences were imposed for stealing much more , the
applicant had suffered a grave injustice . In my view this submission has no merit.
Mr Alberts appears to ignore the fact the applicant had previous convictions even
before this trial began, which cannot be disregarded. These are serious aggravating
factor s.
[17] The regional court found no substantial and compelling circumstances
justifying a departure from the prescribed minimum sentence of 15 years on count 3.
Mr Alberts contended that the regional court misdirected itself in imposing the
minimum sentence. He submitted that the 2013 previous conviction wa s committed
in 2010, whilst the offence on count 3 had already been committed between January
and June 2009, prior to the previous conviction, which justified an intervention with
the sentence on count 3. The conviction on count 3 alone amounted to more th an
R1 million, and was subject to the minimum senten cing provisions prescribed in
s 51(2)(a) of the Criminal Law Amendment Act 105 of 1997 , of 15 years ’
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imprisonment. According to these provisions a first offender, who has been
convicted of an offence refe rred to in Part II of Schedule 2,12 is to be sentenced to
15 years ’ imprisonment, a second offender to 20 years ’ imprisonment and a third
offender to 25 years ’ imprisonment, unless there are substantial and compelling
circumstances to justify a lesser sentence. Even though the applicant was not a first
offender , he was treated as such by the regional court for the purposes of the
minimum sentencing provisions.
[18] It is trite that the imposition of a sentence in a criminal matter is primarily a
matter for the discretion of the trial court. A court of appeal will not lightly interfere
with the exercise of that discretion. In my view, the sentences imposed are just,
salutary and appropriate. The applicant has suffered no grave injustice with regard
to the sentences imposed on him, nor are the y disproportionate to the crimes
committed by the applicant. The sentences were ordered to run concurrently, thus
mitigating the severity of the sentences.
[19] Much has been made of the health challenges that the applicant faces in prison ,
which are not being properly managed in the prison hospital. It is not disputed that
he suffers from a serious diabetic condition. In this regard, counsel for the respondent
averred that the applicant did not appear to care about his health and did not take his
condition seriously even when he had been released on bail. The regional court ha s
already rejected the applicant ’s chronic illness as a compelling and substantial
circums tance. In my view, th e illness of the applicant is a neutral factor in his case ,
and not to be regarded as exceptional.
12 The relevant offences referred to in Part II Schedule 2 are ‘. . . fraud . . . [and] theft . . .
(a) involving amounts of more than R500 000,00;
(b) involving amounts of more than R100 000,00, if it is proved that the offence was committed by a person, gr oup of
persons, syndicate or any enterprise acting in the execution or furtherance of a common purpose or conspiracy ’.
10
[20] Insofar as the time spent in custody , for approximately thirteen months , is
concerned , the applicant contends that it is equivalent to double time served. This
factor was rejected as a substantial and compelling circumstance by the regional
court . This period is not an exceptionally long time, and was also caused by the
applicant ’s own fault as he was arrested for committing similar offences whilst he
was rele ased on bail. In any event, the notion that time spent in custody awaiting
trial amounts to double time has been rejected by this C ourt in numerous decisions.
As stated in Radebe and Another v S (Radebe)13 this C ourt said that:
‘. . .[T]here should be no rule of thumb in respect of the calculation of the weight to be given to
the period spent by an accused awaiting trial. . . A mechanical formula to determine the extent to
which the proposed sentence should be reduced, by reason o f the period of detention prior to
conviction, is unhelpful. . .’14
[21] Furthermore, t he applicant ’s offer to repay R500 000 is no indication of real
penitence. In the twelve years that the applicant committed these offences the
complainants were not comp ensated. There is no genuine contrition on the part of
the applicant. The applicant showed no real insight into his ac tions, and their
consequences.
Conclusion
[22] All the mitigating factors enumerated by Mr Alberts have already been
considered and rejected by the regional court, the high court and the two judges of
this C ourt who considered the petition . They have now been re gurgitated before us
in the guise of exceptional circumstances. No new arguments have be en raised
13 Radebe and Another v S [2013] ZASCA 31; 2013 (2) SACR 165 (SCA) . See also Director of Public Prosecutions,
North Gauteng: Pretoria v Gcwala and Others [2014] ZASCA 44 ; 2014 (2) SACR 337 (SCA) paras 26-30 and S v
Ludidi and Others [2024] ZASCA 162 ; 2025 (1) SACR 225 (SCA) para 12.
14 Radebe para 13.
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before us, which, if known at the time of the petition, might have resulted in a
different outcome. There is no grave injustice , nor will the administration of justice
fall into disrepute if this Court were to refuse special leave to appeal. In Avnit, this
Court stated that an application ‘that merely rehearses the arguments that have
already been made, considered and rejected will not succeed ’.15
[23] I am satisfied that no exceptional circumstances exist to merit a further appeal
or a variation of the decision to refuse the applicant ’s application for special leave
to appeal. Section 17(2) (f) requires that this Court must decide whether exceptional
circumstances exist. If they do not, as I find, then the jurisdictional fact that permits
a reconsideration of the decision on petition has not been established . Accordingly,
this application must fail. As a result, the application must be struck off the roll.
[24] In the result, the following order is made:
The application is struck off the roll.
_____ __________________________
H K SALDULKER
ACTING JUDGE OF APPEA L
15 Avnit para 6.
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APPEARANCES
For the applicant : H Alberts with M G Botha
Instructed by: Du Toit Attorneys, Pretoria
SMO Seobe Inc. , Bloemfontein
For the respondent: W J Van Zyl
Instructed by: Director of Public Prosecutions, Pretoria
Director of Public Prosecutions , Bloemfontein.