SAFLII Note: Certain personal/private details of parties or witnesses have been redacted from this document
in compliance with the law and SAFLII Policy


THE SUPREME COURT OF APPEAL OF SOUTH AFRICA
JUDGMENT

Not Reportable
Case no:1136/2022

In the matter between:

DANIEL LEKEKA APPLICANT
and
THE STATE RESPONDENT

Neutral citation: Lekeka v The State (1136/2022) [2025] ZASCA 182 (1 December
2025)
Coram: MBATHA, KATHREE-SETILOANE and KEIGHTLEY JJA
Heard: Disposed of without an oral hearing in terms of s 19(a) of the Superior
Courts Act 10 of 2013.
Delivered: This judgment was handed down electronically by circulation to the
parties’ representatives by email, publication on the Supreme Court of Appeal

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website and released to SAFLII. The date and time for hand -down of the judgment
is deemed to be 11h00 on 1 December 2025.
Summary: Criminal Law – s 17(2) (f) of Superior Courts Act 10 of 2013 –
application for reconsideration of a decision refusing special leave to appeal – no
exceptional circumstances to warrant reconsideration of decision – application
struck from the roll.

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ORDER


On application for reconsideration: referred in terms of s 17(2)(f) of the Superior
Courts Act 10 of 2013:
The application for reconsideration of the decision refusing special leave to appeal
against conviction and sentence is struck from the roll.


JUDGMENT


Kathree-Setiloane JA (Mbatha and Keightley JJA concurring):


[1] This is the reconsideration of a decision, by two judges of this Court, refusing
an application for special leave to appeal against the order of the Gauteng Division
of the High Court, Johannesburg, Victor and Masipa JJ and Grobler AJ sitting as a
court of appeal ( the f ull court). The full court dismissed an appeal against the
conviction and sentence of Mr Daniel Lekeka (Mr Lekeka) by the same division
(per Lamont J) sitting as the court of first instance (the high court).

[2] Mr Lekeka was charged with two counts of murder read with s 51(1) of the
Criminal Law Amendment Act 105 of 1997 (the Act) and one count of robbery
with aggravating circumstances read with s 51(2) of the Act . The high court
convicted Mr Lekeka on all three counts and sentenced him as follows: Count 1:
life imprisonment; Count 2: life imprisonment; Count 3: ten years’ imprisonment.
The high court ordered that all the sentences run concurrently.

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[3] Mr Lekeka applied to the high court for leave to appeal his conviction and
sentence. On 6 December 2007, the high court granted him leave to appeal to the
full court. On 30 April 2010 , the full court dismissed the appeal and confirmed
Mr Lekeka’s conviction and sentence. He then applied to this Court for special leave
to appeal against the dismissal of his appeal by the full court. On 4 February 2017,
Willis JA and Coppin AJA refused the application for special leave to appeal against
conviction and sentence. Mr Lekeka applied to the President of this Court, in terms
of s 17(2)(f) of the Superior Courts Act 10 of 2013 ( the Superior Courts Act), for a
reconsideration of th at decision. On 27 February 2023 , the application for
reconsideration was referred to this Court for oral argument in terms of s 17(2)(d) of
the Superior Courts Act. The parties, however, requested that the matter be disposed
of without an oral hearing in terms of s 19(a) of the Superior Courts Act.

Facts
[4] Mr Lekaka was convicted for the murder and robbery of Ms Pamela May
Leslie (Ms Leslie) and Mr Thomas Leach (Mr Leach). They will be referred to
collectively as ‘the deceased ’. Mr Lekaka murdered the deceased on
14 September 2006, in their home at 5[…] M[…] Street, Suidoord, Johannesburg
(the property). He also robbed them, using force, of a white Opel Monza motor
vehicle, with registration PV […] (the Monza), that was parked in yard of the
property. Mr Leach had bought the Monza three days before he was killed. Tia, a
large and vicious Doberman (the dog), lived on the property with the deceased.

[5] The deceased employed Mr Kenneth Moyo (Mr Moyo) as their gardener
who worked at their home every Wednesday and Thursday. They also employed a
domestic worker, Ms Elizabeth Mofokeng (Ms Mofokeng). She worked at their
home every Tuesday. Mr Leach operated a motor mechanic business from the

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garage on the property. He bought, reconditioned, and sold Opel vehicles. From
time to time, Mr Leach was assisted by Mr Lekeka in the business. Mr Lekeka was
a spray painter.

[6] The property was enclosed by a fence and a gate. The gate was locked at all
times. Anyone wish ing to access the property had to press a bell at the entrance
gate. The sound of the bell would incite the dog to run to the gate and bark
aggressively. He would calm down on being instructed by either of the deceased.
Once the dog was calm, either of them would unlock the gate and allow entry.

[7] There were vehicles parked in the yard of the property, including a caravan
and a Toyota Skyline. On Tuesday, 12 September 2006, the Monza was also parked
there. It was seen by Mr Paul Bridge (Mr Bridge) who arrived to treat Ms Leslie at
08h30 that morning. Mr Bridge was a friend of the deceased and a holistic healer.
He treated Ms Leslie every Tuesday and Thursday. Mr Bridge noticed that there was
no bumper on the front of the Monza. He saw it lying on the back seat of the Monza.
On asking about the bumper, Mr Leach informed Mr Bridge that he was stripping
the Monza to start work on it.

[8] On the morning of Tuesday, 12 September 2006, Ms Mofokeng came to work.
On entering the yard, she walked past the Monza and noticed a yellow paint mark
on its left rear door.

[9] On Wednesday, 13 September 2006, Mr Moyo came to work. He also saw the
Monza in the yard . Its bonnet was open and Mr Leach was washing the engine .
Mr Moyo also saw a yellow paint mark on the Monza.

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[10] On Thursday, 14 September 2006, at about 06h45, Ms Leslie was seen by a
neighbour, Ms Yvonne Mentz, walking on the road outside the property. This was
the last time she was seen alive. Mr Moyo arrived at the house at approximately
07h55 that morning . He rang the bell. No one answered. He assumed that the
deceased were away at a funeral and waited for them. At about 12 h00, Ms Helen
Williams arrived to meet Ms Leslie. She rang the bell , but no-one answered. She
became concerned and called the police.

[11] On their arrival, one of the policem en, Constable Barend Jacobus Putter,
accessed the property by scaling the wall. He found Ms Leslie ’s body in the
bedroom. The dog was also there. He could not access the bedroom until the dog had
been restrained. He found Mr Leach ’s body in the garage. The gate keys were
missing. Between six to ten bottles of wine were also missing from the wine rack .
However, the safe was not tampered with and other valuables, such as a cell phone
and firearms, were not taken. The house and garage were n either ransacked nor
rummaged through. They were in a neat and tidy state. There were also no signs of
a struggle in the immediate vicinity of the deceased bodies. The entrance gate was
locked and showed no signs of damage or forcible entry. The Monza was not on the
property.

[12] On Monday, 11 September 2006, Mr Lekeka had accompanied Mr Leach on
his trip to Heidelberg in the Skyline to meet Mr Neil Joubert (Mr Joubert), the
seller of the Monza. Mr Leach informed Mr Joubert that he was buying the Monza
for a family member. Once the sale price had been agreed to and paid to him,
Mr Joubert handed over the Monza, together with its key and registration/licence
papers, to Mr Leach. Mr Lekeka drove the Monza and Mr Leach drove the Skyline.
Enroute to the house, the Monza’s carburettor malfunctioned. They stopped and

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Mr Leach made adjustments to it. Mr Lekeka then drove the Monza to the property.
On arrival, he parked the Monza on the property.

[13] Each of the deceased suffered a ‘very hard blow’ to the head and their necks
were slit. Mr Leach was found with a cheesecloth in his mouth, and his hands and
feet were bound with a telephone cord. Despite the brutality of their injuries, there
were no signs of a struggle.

[14] The first time that Mr Lekeka was seen driving the Monza was on Thursday,
14 September 2006 . His girlfriend, Ms Mapule Somase, saw the Monza when he
drove it to his communal dwelling on that day. On arrest, he was found in possession
of three documents that Mr Joubert had handed to Mr Leach on Monday,
11 September 2006. Of these, only one (Exhibit F) related to the Monza. This was
the change of ownership form for the Monza. The engine number and VIN number
on that form corresponded with the Natis records of the Monza.

[15] There was no direct evidence linking the applicant to the murder and robbery
of the deceased. The high court convicted the applicant on circumstantial evidence.
It concluded, through the process of inferential reasoning from the proved facts ,
that the Monza had been on the property of the deceased until Thursday ,
14 September 2006 ; the day that their bodies were discovered. The high court
rejected Mr Lekeka’s version, that he had not left the Monza at the house of the
deceased on Monday, 1 1 September 2006, but had driven it to 29 Bertha Street,
where he parked it. Mr Lekeka lived at 29 Bertha Street. The high court found the
testimony of Mr Bridge, Ms Mofokeng and Mr Moyo, all of whom had placed the
Monza at the house of the deceased over the period 11-13 September 2006, to be
impeccable. It found the testimony of Mr Lekeka ’s landlord and a resident of

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2[…] B[…] Street, that the Monza was not at 2[…] B[…] Street over this period,
equally impeccable. It said that:
‘The latter witnesses certainly had no chance to prepare their evidence. They were really surprise
witnesses which the State became obliged to call, once the plac e of storage was changed from
2[..] B[…] Street to 3[…] B[…] Street. Their evidence was clear and satisfactory in all material
respects. They had no reason to fabricate their evidence. There are further points of
corroboration. How could the employees of the deceased have seen the yellow mark on the
Monza unless it was there at the deceaseds’ home? If the vehicle was gone, they [would have]
had no opportunity to see this mark. On [Mr Lekeka’s] version, once the vehicle left on the
Monday with him, it never returned to the deceaseds’ place of residence. Further corroboration
is to be found in the fact that no one saw [Mr Lekeka] with the Monza until Thursday. That was
the time [Mr Lekeka ] produced it to his girlfriend at Centurion. That was the time that he
commenced driving it and was seen by others to be driving it. It appears to me to be established
beyond reasonable doubt that the Monza was on the deceaseds’ property over the period Monday
to Thursday. . . ’

[16] The high court concluded that the undamaged gate indicated that the intruder
either had the deceaseds’ permission to enter the property or had managed to control
the dog , since it was unlikely that anyone could have scaled the wall without
provoking a reaction from the dog. It found that:
(a) because the deceased would normally grant Mr Lekeka access to the property,
Mr Lekeka was the only person with a reasonable opportunity to enter and commit
the crimes in question;
(b) Mr Lekeka would have known how to subdue the dog and where to find the gate
keys to exit the property; and
(c) no one other than Mr Lekeka had access to the property or motive to murder the
deceased.

(c) no one other than Mr Lekeka had access to the property or motive to murder the
deceased.
As indicated, the full court dismissed the appeal against Mr Lekeka’s conviction and
sentence.

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Exceptional circumstances
[17] In Motsoeneng v South African Broadcasting Corporation Soc Ltd and
Others,1 this Court held that the court to which the decision refusing leave to appeal
is referred for reconsideration , is required , as a threshold question , to determine
whether there are exceptional circumstances that warrant a referral for
reconsideration.2 More recently, in Bidvest Protea Coin Security (Pty) Ltd v Mandla
Wellem Mabena (Bidvest),3 this Court endorsed th is by holding that the court to
which the referral is made is ‘to be the ultimate arbiter as to whether the jurisdictional
fact for the exercise of the power exist s’.4 Since then, a minority judgment of the
Constitutional Court, in Godloza and Another v S,5 has found these judgments to be
wrong. Although this minority judgment is persuasive authority, as a panel of three
judges of this Court, we remain bound by the Motsoeneng and Bidvest judgments of
this Court.

[18] In Liesching and Others v The State,6 the Constitutional Court held that
exceptional circumstances, as envisaged in s 17(2)(f) of the Superior Courts Act, are
circumstances which give rise to a probability of grave individual injustice, or the
administration of justice might be brought into disrepute if the decision refusing
leave to appeal is not reconsidered. 7 This formulation has been adopted by the
legislature in the amendment to s 17(2)(f), which came into effect on 3 April 2024.

1 Motsoeneng v South African Broadcasting Corporation Soc Ltd and Others [2024] ZASCA 80; 2025 (4) SA 122
(SCA).
2 Ibid para 14.
3 Bidvest Protea Coin Security (Pty) Ltd v Mandla Wellem Mabena (Bidvest) [2025] ZASCA 23; 2025 (3) SA 362
(SCA).
4 Ibid para 13.
5 Godloza and Another v S [2025] ZACC 24.
6 Liesching and Others v The State [2018] ZACC 25; 2019 (4) SA 219 (CC); 2018 (11) BCLR 1349 (CC); 2019 (1)
SACR 178 (CC) (Liesching).
7 Ibid para 138.

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Since this matter was referred for reco nsideration on 27 February 2023, the old
formulation of s 17(2)(f) applies.

[19] For this Court to reconsider the decision refusing the application for special
leave to appeal Mr Lekeka’s conviction and sentence, he must demonstrate that there
are exceptional circumstances that warrant its reconsideration. Mr Lekeka’s grounds
for reconsideration are the following:
(a) His conviction was based solely on circumstantial evidence, with no direct or
real evidence to corroborate it. The high court over emphasised the circumstantial
evidence to convict him, despite improbabilities in the inferences drawn.
(b) The high court failed to recognise that he had no motive to rob and murder the
deceased as there was no bad blood between them. And, in spite of needing money
at the time, their safe was not tampered with.
(c) These errors of the high court, resulted in the infringement of, amongst others, his
right to a fair trial in terms of s 35(3) of the Constitution.
(d) His alibi defense that he was in Centurion at the time of the commission of the
crimes in question was not proven wrong by the State. Hence, the high court erred
in concluding that he was capable of travelling between Centurion and the house
of the deceased in 45 minutes, when that journey would have taken three hours
using public transport. It was thus ‘practically impossible’ for him to have made
that journey.
(e) A Vodacom printout of his calls corroborated his denial of a phone call to his
girlfriend in which, according to her testimony, he had instructed her to tell the
court that he did not drink wine but only beer. The high court erred in finding that
he did not contest the printout.
(f) As a result of the inadequacy of direct evidence for his conviction, and the
improbabilities in the high court’s inferential reasoning, his legal representative had

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a duty to apply for his acquittal in terms of s 174 of the Criminal Procedure Act
51 of 1977. He, however, failed to do so.
(g) His legal representative made a ‘fatal concession’ by allowing the trial to proceed
despite the proven improbability of his travel time, which should have led to an
acquittal.
(h) His landlord misled the court with evidence of a paint stain at the property that
he rented from him. The high court, prosecutor, and his legal representative verified
this at an inspection in loco of that property. This was, however, not disclosed at
the trial, and his counsel restrained him from doing so.
(i) The conduct of the judge who presided over his trial in the high court led to a
total failure of justice, as he proceeded with the prosecution despite the ‘absence
of minimum evidence’, thereby arbitrarily depriving him of his constitutional rights
to freedom and dignity . T he judicial officer’s conduct was ‘so irregular’ that it
rendered the ‘administration of justice nugatory’.

[20] None of these grounds constitute exceptional circumstances , as
contemplated in s 17(2) (f) of the Superior Courts Act , that would warrant a
reconsideration of the decision refusing leave to appeal. The errors which the high
court is said to have made ultimately turn on the evaluation of the evidence and
findings of fact and law . They have been raised before in Mr Lekeka’s appeal to
the full court, and in his application for special leave to appeal, which was refused
by two judges of this Court. He invokes the infringement of his right to a fair trial
as a means of elevating his grounds for reconsideration, yet as indicated, they deal
with matters that were previously raised by him.

[21] If he was denied a fair trial, as contended, due to the improper conduct of his
legal representative, the prosecutor, and the presiding judge in the high court, then

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he should have raised this before the full court and in his application for special
leave to appeal to this Court. Yet he omitted to do so. Furthermore, central to his
complaint of inadequate legal representation is that his legal representative in the
trial, failed to carry out his instruction to place on record the outcome of the
inspection in loco. This should have been placed in issue in the high court. At the
inception of the trial, the high court made it clear to Mr Lekeka that:
‘. . . I want . . . to tell him [ Mr Lekeka] that he must listen closely to the evidence and things
which happen in this Court. If he is dissatisfied with anything that is said by his counsel on his
behalf or there are things with which he disagrees, then he can put up his hand. If he puts up his
hand I will let his counsel come to speak to him. And that is his chance to say that things which
are happening in this court are wrong. He must not come later and tell me that they are wrong.
Does he understand properly? . . .’
Moreover, the record reveals that Mr Lekeka ’s legal representative took
instructions from him through-out the trial. If, as contended by Mr Lekeka, he was
prevented by his legal representative (or the judge) from raising this issue in the
high court , then he should have done so on appeal to the full court, or in his
application for special leave to appeal to this Court. The purpose of a s 17(2) (f)
application is not to provide another opportunity to raise appeal grounds that have
already been considered, nor to present the same grounds disguised as new ones. Nor
is it its purpose to introduce issues that are merely afterthoughts , that should have
been raised before the high court, the full court, or in the application for special leave
to appeal to this Court.

[22] In addition, Mr Lekeka argues in his heads of argument, that the evidence of
a witness for the defence , namely Mr Buhlungu is missing from the record , and

a witness for the defence , namely Mr Buhlungu is missing from the record , and
that both the high court and the full court failed to consider this evidence in arriving
at their respective decisions. The additional record which was filed, as part of the
reconsideration application , does not contain a t ranscript of Mr Buhlungu’s

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evidence. It also does not contain the evidence of Captain Wiseman Siphungu,
when he was recalled to testify. Neither does it contain the evidence of Mr Lekeka
himself.

[23] An incomplete record of the trial proceedings does not automatically lead to
the setting aside of a conviction and sentence. An order to this effect will only be
made where a valid and enforceable right of appeal is frustrated by a lost or
incomplete record that cannot be reconstructed. A court of appeal is entitled to
consider the adequacy of a record and whether the right of an appellant will be
frustrated by an incomplete record. However, a s was held by this Court in
S v Chabedi,8 although the record of a trial must be adequate to properly consider
the appeal, it need not be a perfect recording of every single thing that was said at
the trial.

[24] It is, however, not competent f or this Court , in an application for
reconsideration, to consider the adequacy of the appeal record. That falls within
the remit of the court which is ultimately seized with the appeal. However, for the
purposes of an application for reconsideration, the relevant question is this: Would
the applicant suffer a grave injustice or would the administration of justice be
brought into disrepute, if the refusal to grant leave to appeal is not reconsidered –
in circumstances where the courts below did not take into account the evidence of
a defence witness because it was missing from the record?

[25] Crucially, on this score, in this case it is undisputed that both the high court
and, in particular, the full court had access to the complete record of the

8 S v Chabedi 2005 (1) SACR 415 (SCA) para 5.

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proceedings when making their respective decisions. Consequently, the question
does not arise. However, even if the record had been incomplete as contended for,
no grave injustice has been established. There is no evidence presented to this
Court which demonstrates how the incomplete record would have resulted in an
unfair appeal. Nor is it clear the extent to which the missing parts of the record
were used in support of the findings by the high court and the full court.
Additionally, there is inadequate information regarding the steps that were taken
to reconstruct the record for purposes of the full court appeal.

[26] For these reasons , I conclude that Mr Lekeka has failed , to meet the
heightened threshold , to demonstrate exceptional circumstances. In the
circumstances, the application for reconsideration of the decision refusing the
application for special leave to appeal against conviction and sentence falls to be
struck from the roll.

[27] In the result, the following order is made:
The application for reconsideration of the decision refusing special leave to appeal
against conviction and sentence is struck from the roll.





_____________________________
F KATHREE-SETILOANE
JUDGE OF APPEAL

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Appearances

For the applicant: M P Milubi
Instructed by: Legal Aid, Johannesburg
Legal Aid, Bloemfontein

For the respondent: J Joubert SC
Instructed by: National Prosecuting Authority, Pretoria
National Prosecuting Authority, Bloemfontein