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IN THE HIGH COURT OF SOUTH AFRICA
(WESTERN CAPE DIVISION, CAPE TOWN)
JUDGMENT
Reportable/Not Reportable
Case No: CC44/2020
In the matter between:
DERICK KALMEYER Applicant
and
THE STATE Respondent
Coram: ANDREWS AJ
Heard on: 09 December 2025
Delivered on: 17 December 2025
Summary: Condonation - Section 316(1)(b) of the Criminal Procedure Act, 51 of
1977 - application must be made within 14 days after passing of sentence. Section
316(1)(b)(ii) - the application may be made within such extended period as the court
may on application and for good cause allow - a full explanation for the delay, which
must cover the entire period of delay and be reasonable . The granting or refusal of
condonation is a matter of judicial discretion - a court to make a value judgment
based on the facts . Delay occasioned by Applicant’ s Counsel – public scrutiny and
public interest - the standard for considering an application for condonation is the
interest of justice.
Leave to appeal - The test to be applied - Section 17(1)(a) of the Superior Courts
Act - reasonable prospect of success or there are some other compelling reasons
why the appeal should be heard - mere possibility of success is insufficient and falls
short of the criteria envisaged . No substantial and compelling circumstances
individually or cumulatively existed to d epart from the prescribed minimum sentence
ordained - it could not depart from for flimsy reasons.
___________________________________________________________________
ORDER
1. Application for condonation is granted; and
2. The appeal against conviction and sentence is dismissed.
JUDGMENT
ANDREWS, AJ:
Introduction
[1] The Applicant seeks leave to appeal against both conviction and sentence .
The Applicant was arraigned on two counts of attempted murder read with Section
94 and 266 of the Criminal Procedure Act 51 of 1977 (“the CPA”); two counts of
murder read with the provisions of Section 51(1) and 51(2) read with Schedule 2.
Part I and Part II of the Criminal Law Amendment Act 105 of 1997, as amended and
one count of contravening Section 67(1)(a) read with Section 1 of the South African
Police Service Act 68 of 1995, to wit, resisting arrest. On 17 March 2024, he was
found guilty on count 1, on the competent verdict of assault with intent to do grievous
bodily harm; counts 3 and 4, murder, read with the provisions of Section 51(1) of the
Criminal Law Amendment Act, as well as count 5, resisting arrest. He was found not
guilty on count 2.
[2] On 24 June 2024 , the Applicant was sentenced to 5 years ’ imprisonment on
count 1, life imprisonment on counts 2 and 3 respectively and 2 year s’ imprisonment
on count 5. By operation of law, the sentences imposed on counts 1 and 5
automatically run concurrently with the sentences of life imprisonment, in terms of
Section 39(2) of the Correctional Services Act 111 of 1998.
Condonation
[3] The Applicant seeks condonation for the late filing of the application for leave
to appeal. In terms of section 316(1)(b) of the Criminal Procedure Act 51 of 1977, an
application referred to in s 316(1)(a) must be made within 14 days after passing of
sentence. In terms of s 316(1)(b)(ii), the application may be made within such
extended period as the court may on application and for good cause allow.
[4] The reasons postulated by the Applicant for the late filing of the application for
leave to appeal are as follows:
(a) Due to the complexity of the matter, counsel sought it fit to apply his mind and
ensure the grounds for this application are set out thoroughly due to the
serious nature of the charges;
(b) Numerous attempts and interventions to secure the judgment of the
proceedings were unsuccessful until the Registrar supplied the Applicant with
a copy of the trial judgment and the sentencing judgment; and
(c) Upon receipt of the record , further steps were then taken to bring this
application.
[5] Counsel for the Applicant contended that he had to think long and hard about
the matter as there were numerous points that he had to reflect upon and as such
preparing for the leave to appeal was not an easy task. In addition, because this
matter was widely reported in the press and received public scrutiny , public interest
was a factor more particularly , as the matter fell within the more serious scale of
matters because the victims were children.
[6] The Respondent, in opposition, submitted that the degree of lateness is not
sufficiently explained by the Applicant as required by law. Additionally, the reasons put
forward by Applicant’s Counsel are not satisfactory as he had to have taken notes to
enable him to prepare and as such, the reasons for the delay as articulated is no t
satisfactory, warranting a dismissal of the application for condonation.
[7] It is trite that an applicant to a condonation application must give a full
explanation for the delay, which must cover the entire period of delay and be
reasonable. In this regard , the Supreme Court of Appeal (“SCA”) in Mulaudzi v Old
Mutual Life Insurance Company (South Africa) Limited and Others, National Director
of Public Prosecutions and Another v Mulaudzi1 (“Mulaudzi”) stated:
‘What calls for an explanation is not only the delay in the timeous prosecution of the appeal,
but also the delay in seeking condonation. An appellant should, whenever he realises that
he has not complied with a rule of this court, apply for condonation without delay. 2 A full,
detailed and accurate account of the causes of the delay and their effects must be furnished
so as to enable the Court to understand clearly the reasons and to assess the
responsibility.3 Factors which usually weigh with this court in considering an application for
condonation include the degree of non -compliance, the explanation therefor, the importance
of the case, a respondent’s interest in the finality of the judgment of the court below, the
convenience of this court and the avoidance of unnec essary delay in the administration of
justice.4’5
1 (98/2016, 210/2015) [2017] ZASCA 88; [2017] 3 All SA 520 (SCA); 2017 (6) SA 90 (SCA) (6 June
2017).
2 Commissioner for Inland Revenue v Burger 1956 (4) SA 446 (A) at 449G-H.
2017).
2 Commissioner for Inland Revenue v Burger 1956 (4) SA 446 (A) at 449G-H.
3 Uitenhage Transitional Local Council v South African Revenue Service [2003] ZASCA 76; 2004 (1)
SA 292 (SCA) para 6.
4 Dengetenge Holdings (Pty) Ltd v Southern Sphere Mining and Development Company Ltd & others
[2013] ZASCA 5; [2013] 2 All SA 251 (SCA) para 11.
5 At para 26; See also Uitenhage Transitional Local Council v South African Revenue Service [2003] 4
AII SA 37 (SCA) para 6 , the Supreme Court of Appeal ( “the SCA”) held that ‘an application for
condonation is not to be had merely for the asking; a full, detailed and accurate ac count of the causes
of the delay and their effects must be furnished to enable the court to understand clearly the reasons
and to assess the responsibility.’ The court further remarked that ‘if the non -compliance is time -
related, then the date, duration, a nd extent of any obstacle on which reliance is placed must be
spelled out.’
[8] The court in Mulaudzi elucidated further consideration, namely the prospects
of success:
‘In applications of this sort the prospects of success are in general an important, although
not decisive, consideration. As was stated in Rennie v Kamby Farms (Pty) Ltd ,6 it is
advisable, where application for condonation is made, that the application sho uld set forth
briefly and succinctly such essential information as may enable the court to assess an
applicant's prospects of success. This was not done in the present case: indeed, the
application does not contain even a bare averment that the appeal enjo ys any prospect of
success.7 It has been pointed out 8 that the court is bound to make an assessment of an
applicant's prospects of success as one of the factors relevant to the exercise of its
discretion, unless the cumulative effect of the other relevan t factors in the case is such as
to render the application for condonation obviously unworthy of consideration.’9
[9] If regard is had to the reasons proffered by the Applicant for the lateness of
this appeal, it is my view that there are manifest shortcomings. It has however, been
held that where there has been flagrant disregard of the rules in circumstances
where there is no acceptable explanation, the indulgence for condonation may be
refused, irrespective of the merits of the appeal.
[10] Having r egard to the outlined grounds for condonations
aforementioned, it is my view that the delay is indeed unreasonable and the
explanation for the lateness is left wanting, justifying a refusal of the indulgence sort.
However, the Applicant cannot be prejudiced as it is evident that the late filing of this
application was not due to any fault on the part of the Applicant himself, but that of
his Counsel. This court is mindful that it is an established legal principle that the
granting or refusal of condonation is a matter of judicial discretion.
granting or refusal of condonation is a matter of judicial discretion.
6 Rennie v Kamby Farms (Pty) Ltd [1988] ZASCA 171; 1989 (2) SA 124 (A) at 131E.
7 Moraliswani v Mamili [1989] ZASCA 54; 1989 (4) SA 1 (A) at 10E.
8 Finbro Furnishers (Pty) Ltd v Registrar of Deeds, Bloemfontein & others [1985] ZASCA 71; 1985 (4)
SA 773 (A) at 789C.
9 At para 34.
[11] It is trite law that the standard for considering an application for
condonation is the interest of justice. 10 Thus, an application for condonation should
be granted if it is in the inte rests of justice and refused if it is not. 11 This matter
attracted significant public interest which in my view, enjoins this court to make a
value judgment based on the facts of the case before it. 12 I, therefore, deem it to be
in the interest of justice to nonetheless deal with the grounds of appeal and
prospects of success. There is a plethora of case law dealing with the requirements
that an applicant for leave to appeal must satisfy, essentially with a view to curtailing
unmeritorious and frivolous appeals.13
Legal Framework
[12] The test to be applied in an application for leave to appeal is set out in
Section 17(1)(a) of the Superior Courts Act14 which 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 matter under consideration;
(b) the decision sought on appeal 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 prompt resolution of the real issues
between the parties.’
[13] This provision envisages that a Judge, in deciding whether to grant an
applicant, leave to appeal, ought to formulate the view that an appeal would have a
10 S v Mecer 2004 (2) SA 598 (CC) at para 4.
11 Brummer v Gorfil Brothers Investments (Pty) Ltd and Others 2000 (2) SA 837 (CC) at para 3.
12 Grootboom v National Prosecuting Authority and another 2014 (2) SA 68 (CC) at para 35.
13 Valley of the Kings Thabe Motswere (Pty) Ltd and Another v A L Mayya International [2016]
13 Valley of the Kings Thabe Motswere (Pty) Ltd and Another v A L Mayya International [2016]
ZAECGHC 137 at para 4 ‘There can be little doubt that the use of the word “would” in section 17 (1)
(a) (i) of the Superior Courts Act implies that the test for leave to appeal is now more enormous. The
intention clearly being to avoid our Courts of Appeal being flooded with frivolous appeals that are
doomed to fail. . . It seems to me that a contextual construction of the phrase “reasonable prospect of
success” still requires of the judge, whose judgment is sought to be appealed against, to consider,
objectively and dispassionately, whether there are reasonable prospects that another court may well
find merit in arguments advanced by the losing party.’
14 Act 10 of 2013.
reasonable prospect of success or there are some other compelling reaso ns why the
appeal should be heard. 15 More particularly, t he mere possibility of success is
insufficient and falls short of the criteria envisaged. What is required is that there
must be a sound , rational basis to conclude that there is a reasonable prospect of
success on appeal.16
Ad Conviction in respect of Counts 3 and 4
[14] The grounds of appeal are predicated on inter alia, the failure by the
prosecutor to put the state’s version to the accused; that no blood was on the
Applicant; that there was n o evidence that Applicant changed his clothing; whether
the Applicant remained at the premises after speaking to Mr . Riaan Fiennies; that no
timeline was established as to when the Applicant left the Wendy House; that one of
the other two men perpetrated the crimes could not be excluded; the issue of leaving
the children unattended; hearsay evidence; the credibility of Ms. F[...] A[...] and Ms.
Christolene Orion; issues pertaining to the beer bottle and the iron object ; the failure
to call Mr. Riaan Fiennies to testify.
[15] Counsel for the Respondent argued that the Applicant failed to
overcome the burden of showing that the appeal would have a reasonable prospect
of success. More particularly as all the aspects raised in appeal were thoroughly
canvassed during the trial which the court had already addressed. In a ddition, it was
submitted that the court is to have regard to the interests of the victims and the
families.
15 MEC For Health, Eastern Cape v Mkhitha and Another (1221/2015) [2016] ZASCA 176 (25
November 2016) at paras 16 - 17; See also R V Baloyi 1949 (1) SA 523 (A) at 524; Fusion Properties
233 CC v Stellenbosch Municipality [2021] ZASCA 10 (29 January 2021) at para 18 ‘Since the coming
into operation of the Superior Courts Act, there have been a number of decisions of our courts which
dealt with the requirements that an applicant for leave to appeal in terms of ss 17 (1) (a) (i) and 17 (1)
(a) (ii) must satisfy in order for leave to be granted. The applicable principles have over time
crystallised and are now well established. . . It is manifest from the text of s 17 (1) (a) that an applicant
seeking leave to appeal must demonstrate that the envisaged appeal would either have a reasonable
prospect of success or, alternatively, that ‘there is some compelling reason why an appeal should be
heard.’ Accordingly, if neither of these discreet requirements is met, there would be no basis to grant
leave’. See also S v Ackerman and Another 1973 (1) SA 765 (A) at 765 G-H.
16 Ramakatsa & Others v African National Congress & Another [2021] ZASCA 31 (31 March 2021) at
para 10.
[16] The provisions of 17(1)(a) of the Superior Courts Act envisage that a
Judge, in deciding whether to grant an applicant leave to appeal, ought to formulate
the view that an appeal would have a reasonable prospect of success or there are
some other compelling reasons why the appeal should be heard.
[17] I have carefully considered the grounds of appeal as comprehensively
set out in the Applicant’s Notice of Application. It is a fundamental legal principle that
the court is required to postulate an impartial position by reflecting on whether it may
have erred on the facts or the applicable law in its judgment as stated in S v Smith17
that ‘[t]he test for reasonable prospects of success is a dispassionate decision based
upon the facts and the law that a Court of Appeal can reasonably arrive at a
conclusion different to that of the trial Court.’18
[18] Notwithstanding the efforts by Counsel for the Applican t in an
endeavour to persuade this court that another court may reasonably arrive at a
different conclusion, I respectfully stand by my judgment in respect of the above -
mentioned matters raised. These issues were dealt with fully in my judgment and
comprehensive reasons were articulated for the findings mad e. Therefore, for
reasons already given in my judgment, it is my view, that another Court will not reach
a different decision regarding the conviction.
[19] Consequently, I am not persuaded that the Applicant has satisfied the
requirement that he has a reasonable prospect of his appeal succeeding in respect
of the conviction. In the result leave to appeal in respect of the convictions is
dismissed.
Ad sentence
17 2012 (1) SACR 567 at para 7: See also S v Mabena 2007 (1) SACR 492 at para 22.
18 S v Smith at para 7 , ‘In order to succeed therefore, the defendant 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… There must in other words be a sound, rationale basis for
the conclusion that there are prospects of success on appeal.’
[20] It was contended inter alia , that the court erred in finding that there
were no substantial and compelling circumstances and t hat the imposition of two
consecutive life sentences was disproportionate to the offences and that a lesser
sentence should have been imp osed. Counsel for the Respondent argued that the
sentence was not inappropriately shocking if regard is had to the respective ages of
the victims as well as the nature and seriousness of the offences.
[21] This Court delivered a comprehensive judgment on sent ence, where it
considered inter alia , the applicable legal principles, the Applicant’s personal
circumstances, the DNA Report, the Applicant’s previous convictions, the Probation
Officer’s Report and three Victim impact statements. It is trite that the imposition of a
sentence is a discretion of the trial Court and a Court of appeal will be slow to
interfere with this discretion for frivolous reasons unless the Court has exercised its
discretion to do so unreasonably.
[22] I found that the Applicant’s v iolent, repugnant and heinous behaviour
was demonstrative of someone who is highly dangerous; more especially because
he had not displayed any guilt or remorse. I was not persuaded that the Applicant
could be rehabilitated, given the opportunities that he had been afforded in the past.
[23] I respectfully stand by my finding that no substantial and compelling
circumstances, individually or cumulatively existed to depart from the prescribed
minimum sentence ordained by the legislation. This court was mindful th at it could
not depart from the same for flimsy reasons. Therefore, I remain of the view that the
sentences imposed were neither shocking, startling nor disturbingly inappropriate.
Consequently, I am not satisfied that the Applicant has persuaded this court that he
has reasonable prospects of success on sentence. As a result, leave to appeal
application in respect of the sentence imposed is dismissed.
Order
application in respect of the sentence imposed is dismissed.
Order
[24] After having heard Counsel for the Applicant and Counsel for the
Respondent:
(a) Application for condonation is granted; and
(b) The appeal against conviction and sentence is dismissed.
_____________________________
P ANDREWS
ACTING JUDGE OF THE HIGH COURT
Appearances
For Applicant: Adv. M B Sibda
Instructed by: High Court Chambers, Cape Town
For Respondent: Adv. M Koti
Instructed by: Office of the Director of Public Prosecutions:
Western Cape