IN THE HIGH COURT OF SOUTH AFRICA
NORTH WEST DIVISION, MAHIKENG
In the matter between:
MOTSEKI RAMPHODIDI
and
THESTATE
Coram: WESSELS AJ
Date of hearing
Judgment banded down
Case Number:CA25/25
Regional Court Case Number:RC3/05/22
APPELLANT
RESPONDENT
15 AUGUST 2025
11 FEBRUARY 2026
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Delivered: This judgment was handed down electronically by circulation to the
parties' representatives via email. The date and time for hand-down of the
judgment is deemed to be 14h00 on 11 February 2026.
Summary: Criminal Procedure - Appeal - Sentence - Proced ure -
Failure to note appea l in the Regiona l Court - Distinct ion between noting
and prosecution of appeal - High Court lacking jurisdiction to grant
condonation for late not ing of appea l from the Magistrate's Court - Section
309(2) of the Criminal Procedure Act 51 of 1977 vest ing excl usive power to exte nd period for noting in the court of first instance - Object of Rule 67 of the Magistrates' Cou rt Rules - Appea l struck from the roll.
ORDER
The appeal is struck fro m the roll.
JUDGMENT
Wessels AJ
Introduction
[I] This matter comes before this Court as an appeal against sentence (an
effect ive sente nce of 40 years imposed on 30 May 2022), following the
appe llant's conviction in the Regional Court, Potchefstroom , on two
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counts of rape and one count of contravening the Immigration Act'
Leave to appeal was granted by two Judge s of this Division on petition
in terms of section 309C(5) (a) of the Cri minal Procedur e Act2 (' CPA' ).
(2] A procedural issue has arisen that preclude s this Court from enterta ining
the merits of the appe al at this stage. Specifically, the appellant fai led to
note the appeal in the Regional Court. Although it is of no moment ,
given the abortive nature of the appeal as appears from this jud gment,
the notice of appeal does not contai n a court stamp from this Court either
to indicate when it was filed.
[3] The legal requir ements for the valid commencem ent of an appeal are well-e stabli shed in this Division. As articulated in Botlhokoan e v S3, the notin g of an appea l and its prosecution are two distinct procedural
concepts undertak en in different forums. While the prosecution of an appeal takes place in the High Court, the noting of an appeal from a Regional Court must occur with in that court.
[4] This distinction is not merely formali stic. As explai ned in Botlhokoane-1,
the object of Rules 67(5) and 67(9) of the Magistrate s' Court Rules is to ensure the magistrate is furni shed with the grounds of appeal to afford
the magistrate an opportunity to react and provide reasons for the judgment, sentenc e or ancillary order.
[5] The appellant' s failur e to note the appeal in the court of first instance
can not be cured by this Court. The juri sdiction of the High Court to grant
1 Immi gration Act 13 of 2002.
2Criminal Procedure Act 51 of 1977. 3 Botlhokoane v S L2025] ZAN WI IC 186 para 4. 4 I bid para 6.
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condonation for the late noting of an appea l has been fundamentally
alte red by legislative ame ndment s, as has been set out in another
judgment by the full bench of this Court in Mothoa v S5. In this
judgment, it was highlig hted that the present versio n of s 309(2) of the
CPA differs materially from the 1977 version. The same principle was
reaffirmed in Tekane and Another v s6.
[ 6] ln terms of the current statutory framework , the power to exte nd the
period for the noting of an appeal resides exclusive ly with the magistrate
against whose decision the appeal is noted , or another magistrate of that
same court if the presiding officer is materially unavailable. There is no
provision for a High Court to grant condonation for the late noting of an
appeal from the Magistrates' Court.
[7] In the absence of a properly noted appeal or a successfu l application for
condonation in the Regional Court, there is no valid appeal before this
Court.
[8] Consequently, in following the full bench decisions of this Division, the
matter should be struck from the roll to allow the appe llant to follow the
peremptory procedural steps required by sect ion 309(2) of the CPA and
Rule 67 of the Magistrates' Court Rules.
Order
[9] Resultantly, the fol lowing order is made:
5 Mothoa v S [2025] LANWI IC 187 para 4. 6 Tckanc and Another v S [2025] ZANWI IC 188.
The appeal is struck from the roll.
M WESSELS
ACTING JUDGE OF THE HIGH COURT
NORTH WEST DIVISION, MAHIKENG
I agree
)
GE Of' THE HIGH C'OURT OF SOll'fll Al-'RIC'A
NORTH WES1 DIVISION. MAHil<ENC
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APPEARANCES
Counsel for Appellant
Instructed by
Counsel for the Respondent
Instructed by
:Mr TR Semino
:Legal Aid South Africa
:Mahikeng
:Adv K Phetlhu
: Director of Public Prosecutions
:Mahikeng
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