THE HIGH COURT OF SOUTH AFRICA
(WESTERN CAPE DIVISION, CAPE TOWN)
JUDGMENT
Reportable / Not Reportable
Case no: CC08/2020
In the matter between:
THE STATE
and
SINETHEMBA MAKALENI Accused 1
ANGA ANGANDA MABEJANE Accused 2
LONWABO COSA Accused 3
SIYANDA NDZENDZE Accused 4
Coram: Honourable Justice HM Slingers
Heard: 16 February 2026
Delivered: 23 February 2026
Neutral citation: The State versus Sinethemba Makaleni & 3 o thers
CC08/2020 [2026] ZAWCHC … (23 February 2026)
This judgement is delivered electronically by circulation to the parties’ legal representatives’ email
addresses and will be deemed to have been delivered on 23 February 2026.
ORDER
The applications for leave to appeal are refused.
JUDGMENT
[1] This is an application for leave to appeal brought by accused 1 and 3 against
their convictions handed down on 15 August 2025 and their sentences
handed down on 22 January 2026. 1 Accused 1, Mr. Makaleni seeks leave to
appeal to the Full Bench while accused 3, Mr. Cosa seeks leave to appeal to
the Supreme Court of Appeal.
[2] In respect of the application for leave to appeal against his conviction, Mr.
Makaleni’s legal representative averred that the court erred in accepting the
evidence presented by the state and in finding that the accused acted in
furthering a common purpose. In respect of the application for leave to
appeal against Mr. Makaleni’s sentence, his legal representative argued that
another court c ould come to a different conclusion. The application did not
identify any material mis -directions committed by the court in arriving at the
sentences imposed.
[3] In respect of his application for leave to appeal against his conviction, Mr.
Cosa’s legal r epresentative submitted that another court could come to a
different conclusion after evaluating the evidence. However, the application
1 Accused 4, Mr. Ndzenze elected not to appeal against his conviction or sentence.
for leave to appeal did not identify any material errors or mis -directions by the
court. In respect of the application for leave to appeal against the sentences
imposed on Mr. Cosa, it was argued that there was a possibility that another
court may deviate from the implementation of the prescribed minimum
sentences. However, the application for leave to appeal identified no material
mis-directions or material errors committed by the court in arriving at the
sentences imposed.
[4] Furthermore, it was not averred that the sentences imposed on Mr. Makaleni
and Mr. Cosa were unjust or shockingly disproportionate.
[5] Although not specifically stated, it is apparent from the grounds set out in the
applications for leave to appeal as well as the arguments presented in support
thereof that they are brought in terms of section 17(1)(a)(i) of the Superior
Courts Act which provides that leave to appeal may only be granted where the
judge or judges concerned are of the opinion that there are reasonable
prospects of success.
[6] In S v Smith2 the Supreme Court of Appeal stated:
‘[7] What the test of reasonable prospects of success postu lates is a
dispassionate decision, based on the facts and the law, that a court of appeal
could reasonably arrive at a conclusion different 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 prospect
are not remote but have a realistic chance of succeeding. More is required to
be established than that there is a mere possibility of success that the case is
2 2012 (1) SACR (SCA) at para 7
arguable on appeal or that the case cannot be categorised as hopeless.
There must, in other words, be a sound, rational basis for the conclusion that
there are prospect of success on appeal.’
[7] The prerequisite requirement of reasonable prospects of success must be
considered wit hin the context of the test for the granting of leave to appeal
intrinsic in the use of the word ‘would’ in section 17(1)(a)(i) which requires a
measure of certainty.3
[8] In MEC Health, Eastern Cape v Mkhita 4the court reaffirmed the test to be met
before leave to appeal should be granted and went on to state that:
‘An applicant for leave to appeal must convince the court on proper grounds
that there is a reasonable prospect or realist chance of success on appeal. A
mere possibility of success, an arguable case or one that is not hopeless, is
not enough. There must be a sound, rational basis to conclude that there is a
reasonable prospect of success on appeal.’
[9] In the present application, both applicants have relied on a possibility of
success, on an a rguable case. However, as stated above, this is insufficient
to satisfy the requirements of section 17(1)(a)(i) of the Superior Courts Act.
[10] In respect of the application for leave to appeal against the sentences
imposed, it is trite that the trial co urt is best placed to impose a sentence and
that sentencing falls primarily within its discretion which is not easily interfered
with. As stated in S v Bogaard5:
3 Mont Chevaux Trust v Goosen 2014 JDR 2325 (LCC)
4 (1221/15) [2016] ZASCA 176 (25 November 2016)
5 2013 (1) SACR 1 (CC) at para [41]
‘Ordinarily, sentencing is within the discretion of the trial court. An appellate
court’s po wer to interfere with sentences imposed by courts below is
circumscribed. It can only do so where there has been an irregularity that
results in a failure of justice; the court below misdirected itself to such an
extent that its decision on sentence is vi tiated; or the sentence is so
disproportionate or shocking that no reasonable court could have imposed it.
A court of appeal can also impose a different sentence when it sets aside a
conviction in relation to one charge and convicts the accused of another.’
[11] In the present matter there are no allegations of any irregularities committed
by the court which resulted in a failure of justice; of any misdirection which
would vitiate the sentences imposed; or that the sentences imposed are so
shockingly disproportionate that no reasonable court could have imposed it.
[12] Therefore, it cannot be found that there are reasonable prospects that another
court would deviate from the implementation of the prescribed minimum
sentences or impose a lesser sentence.
[13] In the circumstances, the applications for leave to appeal by accused 1, Mr.
Makaleni and accused 3, Mr. Cosa against both their convictions and
sentences are refused. Accordingly, I make the following order:
The applications for leave to appeal are refused.
_____________________
HM SLINGERS
Judge of the High Court
Appearances:
Counsel for the State: Ms. R Uys
Counsel for Accused 1: Mr. O Arend
Counsel for Accused 2: Mr. S Bandeker
Counsel for Accused 3: Mr. M Delbrook Jones
Counsel for Accused 4: Mr. S Bandeker