IN THE HIGH COURT OF SOUTH AFRICA
(EASTERN CAPE DIVISION: MTHATHA)
CASE NO: CC 28 / 2024
In the matter between
NTUTHUZELO NOKHOKHOBA 1st Applicant
SANDILE NTSHETSHE 2nd Applicant
and
THE STATE Respondent
Heard on: 30 May 2025
Judgment delivered on: 3 JUNE 2025
JUDGMENT – LEAVE TO APPEAL
NGOQO AJ
[1] This is an application for leave to appeal against the judgment of this court which
was delivered on the 26th day of February 2025 at the Bizana Circuit Court.
[2] The applicants were found guilty of having committed the following offences ;
a) Housebreaking with intent to commit rape and robbery with aggravating
circumstances
b) Robbery with aggravating circumstances
c) Rape
d) Murder
[3] The application by the applicants is brought on the following grounds;
a) That this court misdirected itself in finding that the state had proved its case
beyond reasonable doubt,
b) The state case relied heavily on the evidence of a section 204 witness and
that this court did not exercise caution when dealing with the evidence of this
witness,
c) The section 204 witness informed the court that he was forced to participate
in the commission of the crimes yet when an opportunity for him to escape
presented itself, he did not escape,
d) The section 204 witness told this court that it was dark at the crime scene
and it was never established from him how he managed to see the applicants
stabbing and raping the deceased,
e) The section 204 witness in itially concealed the fact that he was assaulted by
community members after he had been apprehended, something which could
have influenced him to lie about the applicants,
f) That independent forensic evidence was necessary, especially DNA and
fingerprints,
g) The court erred and misdirected itself in finding that the 1st applicant had
implicated himself to his uncle despite the fact that his uncle only testified
about the debt which he said applicant told him they had gone to collect from
the deceased and that h e was now suspected of murdering her and was
afraid of the community members.
h) That the court misdirected itself in finding that the K -Way hat allegedly found
at the crime scene belonged to the 2nd applicant notwithstanding the fact that:
I. The hat was never exhibited in court and
II. The person who had implicated the 2nd applicant as being the owner
of the hat did not testify and
III. No DNA results linked 2nd applicant to the hat.
i) The testimonies of the 1st applicant’s aunt and uncle regarding the
conversation betwe en him and his uncle differed materially,
j) The court erred and misdirected itself in finding that the photos corroborated
the section 204 witness’ testimony ignoring the possibility that it could have
been this witness alone who had committed the offences,
k) The court erred and misdirected itself in rejecting both applicants’ versions.
l) Another court may reach a different verdict and find both applicants not guilty
on all counts and
m) There are real prospects of success on this appeal.
[4] The applic ation is being strongly opposed by the respondent. The respondent
argued that the section 204 witness was with both accused at the time of the
commission of the offences. Both appellants were well known to the witness. The
respondent argued further that identity cannot be an issue in this matter. Mr. Bidla for
the respondent, argued that the application does not meet the threshold that is
envisaged in section 17 of the Superior Courts Act.
[5] Applications for leave to appeal are governed by the provisions of section 17 of
the Superior Courts Act.1 In section 17 (1), this Act provides as follows:
“(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 reason able prospect of success; or
(ii) there is some other compelling reason why the appeal should be
heard, including conflicting judgments on the matter under consideration;
(b) The decision sought to app eal does not fall within the ambit of
section 16 (2) (a); and
(c) Where the decision sought to be appealed does not dispose of all
the issues in the case, the appeal would lead to a just and p rompt resolution of all
the real issues between the parties.”
1 Act 10 of 2013
[6] The traditional test that our courts have been applying in considering leave to
appeal, prior to the introduction of section 17 of the Superior Courts Act,2 has
been whether there is a reasonable prospect that another court may come to a
different conclusion to the one reached by the court a quo .3 With the enactment
of section 17, the test has obtained statutory force and the threshold for granting
leave to appeal has been raised.
[7] In the matter of MEC for Health, Eastern Cape v Mkhitha and Another4 it was
held:
“Once again it is nec essary to say that leave to appeal, especially to this
court, must not be granted unless there truly is a reasonable prospect of
success. Section 17 (1) (a) of the Superior Courts Act 10 of 2013 makes it
clear that leave to appeal m ay only be given where the judge concerned is of
the opinion that the appeal would have a reasonable prospect of success on
appeal.”
[8] The Supreme Court of Appeal dealing with the meaning of reasonable
prospects of success, in the ca se of S v Smith5 held as follows:
“What the test of reasonable prospects of success postulates is a
dispassionate decision, based on the facts and the law, that a court of appeal
could reasonably arrive at a conclusion differ ent to that of the trial court. In
order to succeed, therefore, 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 succeeding. More is required to
be established than that there is mere possibility of success, that the case is
arguable on appeal or that the case cannot be categorized as hopeless.
There must in other words, be a sound, rational basis for the conclusion that
there are prospects of success on appeal.”
2 Supra
3 See Commissioner of Inland Revenue v Tuck 1989 (4) SA 888 (T) at 890B
4 [2016] ZASCA 176 @ para 16 (25 November 2016)
5 2012 (1) SACR 567 at para 7
[9] This court in its judgment dealt in detail with each specific ground that the
appellants are raising in their application for leave. Without saying much, they submit
in their application that another court may come to a different finding than that of this
court. That is not what is expected of them. Their application falls short of meeting
the requirement that is envisaged in section 17 (1) of the Superior Court Act.
[10] On the issue of the absence of DNA evidence, the applicants’ argument is
misplaced. The state has no duty to adduce all the evidence that possibly can be
adduced in a matter. It is even worse in this matter, where there is direct evidence
linking the applicants to the commission of the crime.
[11] With that said, this court makes the following order:
The application for leave to appeal is refused.
______________________
D NGOQO
ACTING JUDGE OF THE HIGH COURT
Applicant’s Attorney: A. Madywede
Legal Aid South Africa
96 Sutherland Street
Mthatha
Respondent’s Counsel: Adv. Bidla
Instructed by: Office of the Director of Public Prosecutions
Cnr. Sisson & Sutherland Street
Fort Gale
Mthat ha