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IN THE HIGH COURT OF SOUTH AFRICA
NORTH WEST DIVISION - MAHIKENG
CASE NO: CA 65/2024
COURT A QUO CASE NO: RC16/2024
Reportable: No
Circulate to Judges: No
Circulate to Magistrates: No
Circulate to Regional Magistrates: No
In the matter between:
THABO EDWARD BANKIES APPELLANT
and
THE STATE RESPONDENT
,... .....
Judgment is handed down electronically by distribution to the parties’ legal
representatives by e-mail. The date that the judgment is deemed to be handed
down is 24 FEBRUARY 2026 at 10h00.
CORAM: MASIKE AJ & WESSELS AJ
ORDER
(i) The appeal is struck from the roll.
JUDGMENT
MASIKE AJ
INTRODUCTION
[1] Before us is an application for condonation for the late filing of the
appeal and appeal against sentence. Mr Thabo Edward Bankies (“the
appellant”), was arraigned on 23 April 2024 in the Regional Court for the
District of North – West held at Schweizer - Reneke (“the court a quo”)
before Regional Court Magistrate Mr B J Zulu (“the learned Regional
Court Magistrate”) on the charge s of kidnapping (“count 1”), robbery
with aggravating circumstances as intended in s 1 of Act 51 of 1977
(“count 2”), rape (“count 3”) and murder (“count 4”).
[2] It is alleged that the appellant on 26 February 2011 and at Ipel egeng in
the District/Regional Division of North West, the appellant did
unlawfully and intentionally deprive K[...] M[...] of her freedom of
movement by means of taking her forcefully from the street to an
abandoned building in Ipelegeng Sports ground, (count 1).
[3] It is further alleged that the appellant committed the offence of robbery
with aggravating circumstance read with the provisions of s 51(2), 52(2)
and 52A and 52B of the Criminal Law Amendment Act 105 of 1997, that
at all times the appellant a cted in furtherance of common purpose , (count
2).
[4] It is alleged further that the appellant contravened the provisions of s 3
read with s 1, 2, 50, 56(1), 56A, 57, 58, 59, 60 and 61 of the Criminal
Law (Sexual Offences and Related Matters) Amendment Act 32 of 2007
as amended. Further read with s 51(1) and schedule 2 of the Cri minal
Law Amendment Act (“CLAA”) 105 of 1997 as amended. Further read
with s 120 of the Children’s Act, 38 of 2005.
[5] The provisions of s 51(1) of CLAA found application because the
complainant in the matter was raped by more than one person, acting in
execution or furtherance of a common purpose or conspiracy, (count 3)
[6] It is lastly alleged that the appellant contravened the provisions s 51(1),
52(2), 52A and 52b of the Criminal Law Amendment Act 105 of 1997
with Part 1 and schedule 2, in that on 26 February 2011 and at Ipelegeng,
in the Regional Division of North West, the appellant did unlawfully and
intentionally kill K[...] M[...] a female person, further that the appellant
acted in furtherance of common purpose, (count 4).
[7] The appellant was throughout the proceedings in the court a quo
represented by M r Simeno from Legal Aid South Africa. The appellant
pleaded guilty to the proffered charges against him. A statement in terms
of s 112(2) of Act 51 of 1977, the Criminal Procedure Act (“CPA”) was
read into the record and handed up to the court a quo.
[8] The s 112(2) statement of the appellant was accepted by the State . The
learned Regional Court Magistrate accepted the contents of the s 112(2)
statement and found the app ellant guilty o n all four o f the proffered
charges against the appellant.
[9] Having found the appellant guilty of the proffered charge s and having
heard submissions from the legal representative of the appellant and the
State on sentence, the learned Regional Court Magistrate, on 4 July 2024,
sentenced the appellant to three years in respect of count 1, 15 years in
respect of count 2, and life imprisonment in respect of count 3 and 4. The
sentences in respect of count 1 and 2 were to run concurrently with the
sentences imposed in count 3 and 4. In terms of s 103 of Act 60 of 2000
the appellant was declared unfit to possesses a firearm and the court a quo
ordered that the name of the appellant be included in the national register
for sexual offenders in terms of s 50 of CLAA.
[10] Aggrieved by the sentence imposed by the learned Regional Court
Magistrate, the appellant approaches this Court for; firstly, condonation
for the late filing of the appeal ; and secondly to appeal against the
sentence imposed in the court a quo.
[11] Regrettably, this appeal has been carelessly handled by the attorneys of
the appellant to the extent it becomes unnecessary to deal with the merits
thereof.
[12] The appellant relies on the provisions of s 309(1)(a) of the CPA to
approach this, Court. The section reads as follows:
“309 Appeal from lower court by person convicted
(1)(a) Subject to sec tion 84 of the Child Justice Act, 2008 (Act 75 of 2008), any
person convicted of any offence by any lower court (including a person discharged
after conviction) may, subject to leave to appeal being granted in terms of section
309B or 309C, appeal against such conviction and against any resultant sentence or
order to the High Court having jurisdiction: Provided that if that person was sentenced
to imprisonment for life by a regional court under section 51 (1) of the Criminal Law
Amendment Act, 1997 (Act 105 of 1997), he or she may note such an appeal without
having to apply for leave in terms of section 309B : Provided further that the
provisions of section 302 (1) (b) shall apply in respect of a person who duly notes an
appeal against a conviction, sentence or order as contemplated in section 302 (1) (a). ”
(own emphasis)
[13] On 8 July 2022, Rule 67(5A) (a) (i) of the Magistrate’s court rules
(“MCR”) were amended to read as follows:
“(5A) (a) (i) A person contemplated in the first proviso of section 309(1)(a) of the
Criminal Procedure Act, 1977, who wishes to appeal against his or her conviction or
sentence or order, shall do so in writing to the registrar or clerk of the court within 10
days after the passing of the sentence or order following on the conviction and shall
also send a copy of such notice of appeal to the director of public prosecutions
concerned or in a case in which the prosecution was not at the public instance, to th e
prosecutor concerned. (own emphasis)
[14] There are several judgments that have been penned by Judges from this
Division of the High Court dealing with Rule 67 of the MCR. In
Letshaba and Another v The State 1 (Letshaba) Petersen ADJP writing for
the court said the following:
“The automatic right of appeal has through the amendment of Rule 67(5A) considered
with s 309(2) of the CPA, through law of general application, brought about a
limitation of the automatic right of appeal. An appeal noted by an appellant sentenced
to life imprisonment is no longer an unfettered right with no further obligations placed
on such appellant.”
[15] Section 309 (2) of the CPA reads as follows:
“(2) An appeal under this section shall be noted and be prosecuted within t he period
and in the manner prescribed by the rules of court : Provided that the magistrate
against whose decision or order the appeal is to be noted, or if he or she is unavailable
1 (CA59/2023) [2025] ZANWHC 180; 2025 (2) SACR 456 (NWM) (11 September 2025) para 6
any other magistrate of the court concerned, may on application and on good cause
shown, extend such period” (own emphasis)
[16] The “rules of court” referred to in s 309(2) of the CPA are, inter alia, Rule
67 of the MCR2.
[17] The appellant was obliged to have noted his appeal against the sentence
imposed by the learned Regional Court Magistrate, within ten days of the
passing of the sentence. The notice of appeal was filed in the court a quo
on 24 July 2024, which is well outside the prescribed ten days period , as
evince by the date stamp of the Office of the Clerk of the court a quo.
[18] The failure to note the appeal within the period in terms of Rule
67(5A)(a)(i) of the MCR , necessitated the bringing of an application for
condonation for the late noting of the appeal.
[19] The question that begs an answer is whether the appellant was correct in
bringing the application for condonation for the late filing of the appeal in
this Court. This is a question that has been addressed by Wessels AJ in
Botlhokoane. In Botlhokoane Wessels AJ writing for the court said the
following with regard to condonation for the late noting of an appeal
outside the ten days period provided for in Rule 67(5A)(a)(i) of the MCR:
“Section 309(2) of the CPA is clear in that it provides for the extension of the period
of the noting of an appeal, laid down in Rule 67, by the magistrate against ‘whose
2 Botlhokoane v S (Botlhokoane) (Appeal) (CA19/25) [2025] ZANWHC 186 (11 September 2025) para 13
decision or order the appeal is to be noted’. It follows that, when condonation is
sought for the10 -day period allowed for noting the appeal, the ap plication to extend
this period must be brought in the Regional Court.”3
[20] Petersen ADJP echoed the same sentiments of Wessels AJ in Letshaba
when he said the following:
“If the appeal is not noted within 10 days as envisaged by Rule 67(5A) (i) of the
MCR, an appellant must apply for condonation sentenced to imprisonment for life, the
appellant must apply for condonation to the magistrate concerned or if not available
any other magistrate, who grant same on good cause shown.”4
[21] In Mothoa v S 5 (Mothoa) and Tekane and Another v S 6 (Tekane) Petersen
ADJP writing for the court said:
“There is no provision for the High Court to grant condonation for the late noting of
an appeal (sic late filing of an appeal). There is therefore no need for any application
for condonation, termed “for the late filing of the appeal”. In fact, save for the
peremptory provisions of s309(2) and Rule 67 of the Magistrate’s Court Rules,
Uniform Rule 51 of the High Court Rules provides no furth er timeframes for the
prosecution of a criminal appeal from the Magistrate’s Court, necessitating a
condonation application to the High Court.”7
3 Botlhokoane at Para 14
4 Letshaba (supra) Para 26
5 (CA27/2025) [2025] ZANWHC 187 (16 September 2025)
6 (CA29/2025) [2025] ZANWHC 188 (16 September 2025)
7 Mothoa Para 4 and Tekane Para 6
[22] The application for condonation for the late filing of the appeal of the
appellant, which should read application for condonation for the late
noting of the appeal , was filed in the wrong court. The Regional Court
was the correct court to bring the application for condonation for the late
noting of the appeal. The application should have been brought before the
learned Regional Court Magistrate and if he is not available before any
other magistrate.
[23] Due to the fact that there being no order condoning the late noting of the
appeal and the appellant having brought the application for condonation
for th e late noting of the appeal in the wrong court , the appeal is not
properly before us.
ORDER
[24] Resultantly, the following order is made: -
(i) The appeal is struck from the roll.
__________________________________
T MASIKE
ACTING JUDGE OF THE HIGH COURT OF SOUTH AFRICA
NORTH WEST DIVISION, MAHIKENG
I agree
__________________________________
M WESSELS
ACTING JUDGE OF THE HIGH COURT OF SOUTH AFRICA
NORTH WEST DIVISION, MAHIKENG
APPEARANCES
For the Appellant: Mr T G Gonyane
Instructed by: LEGAL AID SOUTH AFRICA
MAHIKENG LOCAL OFFICE
TEL: 018 381 1096
Email: TiroG@legal-aid.co.za
REF: MATSIPE X 109 189 932501
For the Respondent: Advocate B T Chulu
Instructed by: THE DIRECTOR OF PUBLIC
PROSECUTIONS
NORTH WEST PROVINCE
MEGACITY COMPLEX
EAST GALLERY
3139 SEKAME ROAD
MMABATHO
2735
TEL: 018 388 0909
Email:
REF:
Date Heard: 9 May 2025
Date Handed Down: 24 February 2026