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IN THE HIGH COURT OF SOUTH AFRICA
NORTH WEST DMSION - lVIAHIKENG
In the appeal of:
JABULANCNDABA
and
THE STATE
Coram: Titus AJ & Zwicgelaar AJ
CASE NO: CA12/2025
RCA04/2021
Appellant
Respondent
Delivered: This judgment is handed dm;vn electronically by circulation to the parties
through their legal representatives> email addresses. The date for 1he hand-down is
deemed to be 27 January 2026.
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YES/NO
YES/NO
YES/NO
YES/NO
ORDER
1. The appeal against sentence is struck from lhe roll.
JUDGMENT
TITUSAJ
l l J This is an appeal against sentence only. The parties agreed to the disposal of
the app~al on the papers as provided for by section 19 (a) oC the Superior Courts
Act1_.
[2) On 25 April 2022, the Appellant was convicted in the Regional Cou1t for
the Regional Division· of N011h West, held at Mahikeng, on one count of rape of an
adult female in contravention of section 3 of the Criminal Law (Sexual Offences
and Related Matters) Amendment Act 32 of 2007, read with sections 1, 56, 56A,
57, 58, 59, 60 and 61 thereof, and further read with sections 256 and 261 of the
Criminal Procedure Act 51 of J 977 ("the CPA").
[3] The charge attracted the sentencing regime under section 51(1) and Part I of
Schedule 2 to the Criminal Law Amendment Act 105 of 1997 ("Act 105").
1 Act No. Act 10 of 2013.
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[ 4] The trial court found that the Appellant unlawfully and intentionally
committed an act of sexual penetration by inserting his penis into the
complainant>s vagina on or aboul 4 September 2016, without her consent, on more
lban one occasion, and that he inflicted grievous bodily harm upon her.
[5] Although the offence carried the possibility of life imprisonment in terms of
section 51(1) of IJ1e Criminal Law Amen<lment Act 105 of 1997, the learned
regional magistrate ultimately imposed a sentence of 20 years' imprisonment on 28
April 2022; having found substantial and compelling reasons to deviate from the
prescribed minimum sentence. The Appellant was further declared unfit to possess
a fueann in terms of section 103 of the Fireanns Control Act 60 of 2000.
[6] On 2 May 2025, approximately three years after sentence, the Appellant
noted an appeal to this Court against the sentence imposed. He did so by filing a
notice of appeal directly in this Court, without first s~cking or obtaining leave to
appeal from the regional court as required by section 309B2 of the CPA.
[7] Counsel for the Appellant submitted that the Appellant enjoys an automatic
right of appeal in terms of section 309B of the CPA by virtue of the nature of the
right of appeal in terms of section 309B of the CPA by virtue of the nature of the
2 (1) (a) Subject to section 84 of the Child Justice Act, 2008 (Act 75 of 2008), any accused, other than a person referred to in the first proviso to section 309 (1) (a), who wishes to note an appeal against any conviction or against any resultant sentence or order of a lower court, must apply to that court for leave to appeal against that conviction, sentence or order. [Para. (a) substituted by s. 99 (1) of Act 75 of2008 (wef I April 2010) and bys. 11 of Act 42 of2013 (wef I April 2010).J (b) An application refen·ed to in paragraph (a) must be made • (i) within 14 days after the passing of the sentence or order following on the conviction; or (ii) within such extended period as the court may on application and for good cause shown, allow. (2) (a) Any application in te1ms of subsection (I) must be heard by the magistrate whose conviction, sentence or order is the subject of the prospective appeal (hereinafter referred to as the trial magistrate) or, if the trial magistmte is not available, by any other magistrate of the court concerned, to whom it is assigned for hearing.
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charge and the sentence imposed. This submission is misconceived. Section 309B
regulates applications for leave to appeal; it does not confer an automatic right of
appeal.
[8) Moreover, it appears that the Appellant proceeded on the erroneous
assumption that U1e mere fact that he faced a charge attracting a polential sentence
of life imprisonment entitled him to appeal as of right. The court a quo, however,
did not impose life imprisonment, but instead, as indicated before, sentenced l1im
to 20 years' imprisonment after fLnding substantial and compelling circumstances.
[9] In these circumstances, the Appellant does not enjoy an automatic right of
appeal in terms of section 309(l)(a) of the CPA, which applies only where a
sentence of life imprisonment has in fact been imposed.
(10] As the Appellant was required to seek leave to appeal from the trial court in
terms of section 309B(l)(a), and having failed to do so, no competent appeaJ is
before this Cow1. The absence of leave is a jurisdictional defect that cannot be
cured, with the result that the purported appeal falls to be struck from the roll.
[11] In the result:
(i) The appeal against sentence is struck from the roJI.
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APPEARANCES:
For Appellant:
For Respondent:
TITUS
ACTING JUDGE OF THE HIGH COURT
NORTH \VEST DMSION
l concur,
CJ ZWIEGELAAR
ACTING JUDGE OF THE HlGH COURT
NORTH WEST DMSION
MRTRSEMINO
LegaJ Aid South Africa
Mahikeng Local Office
Borekelong House
742 Dr James MorokaDrive
MMABATHO
ADVB.CKUNENE
Respondent's counsel
North West Province
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JudgmentReserved:
2nd Floor, Megacity Shopping Complex
3139 Sekame Road
.MlvfBATHO
13 June 2025
Judgment Handed Down: 27 January 2026
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