IN THE HIGH COURT OF SOUTH AFRICA
NORTH WEST DIVISION, MAHIKENG
In the matter between:
MALOPE WILLIAM TSHILO
and
THE STATE
Coram: Hendricks JP et Wesse ls AJ
Date of hearing: 27 February 2026
Not reportable
Case no:CA4 /2023
RC Case No: RC6 l/l 9
App licant
Respondent
Delivered: This judgment was handed down electronically, circulated to the
parties' representatives via email, uploaded to CaseLines, and released to
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SAFLII. The date and time for the handing down of the judgment are deemed to
be 1 0h00 on 9 March 2026.
Summary: Criminal Procedure - Appeal - Application for leave to appeal
against a judgment of the Full Bench of the High Court sitting as a court of
appeal - High Court having dismissed an appeal from the Regional Court
- Applicant seek ing leave from the High Court to appeal that decision to the
Full Court of the same Division - Jurisdiction of the High Com1 - In terms
of section 16(1 )(b) of the Superior Courts Act 10 of 2013, an appeal against
a decision of a Division given on appeal to it lies only to the Supreme Court
of Appeal upon special leave being granted by that Court - High Cou1t
functus officio once appellate judgment delivered - High Court lacking
jurisdiction to entertain the application - Application dismis sed.
JUDGMENT
WesselsAJ
Introduction
[l] This is an application for leave to appeal brought by the applicant against
the judgment and order of this Court delivered on 5 December 2024. Sitting as a
court of appeal, this Court, differently constituted, dismissed the applicant's
appeal against his conviction and sentence.
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[2] The applicant was charged and convicted in the Atame lang Regional Court
on one count of murder. Following the conviction, the Regional Court sentenced
the Applicant to life imprisonment.
[3] The Applicant subsequent ly appealed to this Division against both
conviction and sentence. On 5 December 2024, a ful I bench of this Court
( comprising Mfenyana J and Motsatsi AJ) dismissed the appeal, thereby
confirming the conviction of murder and the sentence of life imprisonment.
Application for leave to appeal
[4] In the present application, the Applicant seeks leave from this Court to
appeal that decision to a full Court of this Division. The grounds for the
application for leave to appeal are varied and substantial, including contentions
that the court erred in its applicat ion of the doctrine of common purpose and failed
to consider mater ial discrepancies in the state witnesses' evidence. Regarding the
sentence, the applicant maintains that his advanced age of 72 years and his status
as a first offender, should have been weighed as substantial and compelling
circumstances justifying a departure from the prescribed minimum sentence of
life imprisonment.
Jurisdiction
[5] Before this Court can consider the merits of the application , a preliminary
jurisdictional issue must be resolved. The crisp issue is whether a full bench of a
high court has the jurisdiction to hear an application for leave to appeal against
its own judgment where it sat as a court of appeal.
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[6] The hierarchy of appeals is governed by s 16 of the Super ior Courts Act'
('SC Act'). Section 16(l)(b) of the SC Act provides that an appeal against a
decision of a division given on appeal to it, lies to the Suprem e Court of Appeal
only with the specia l leave of the Supreme Court of Appeal (' SCA ').
[7] Section 315( 1)(a) of the Crim inal Procedure Act2 51 of 1977 ('CPA')
provides:
' In respect of appeals and questions of law reserved in connection with criminal cases heard
by a High Court, the court of appea l shall be the Supreme Cou rt of Appeal. except in so far as
subsection s (2) and (3) otherwise provide s.'
[8] Section 315(5)(a) of the CPA define s 'court ofappeal' as follows:
• means, in relation to an appeal which in terms of subsection (3) is heard or is to be beard by a full court, the full court concerned, and in relation to any other appea l. the Supreme Court
of Appeal.·
[9] Section 315(3) of the CPA provides that an appea l which is to be heard by
a full court in terms of a direction under section 315(2)(a) shall be heard by the
full court of the provincial division concerned. Section 3 I 5(2)(a) applies only
where an application for leave to appea l in a criminal case heard by a sing le judge
of a High Court is grante d, and the court or judge granting the application directs
that a full court hear the appeal.
[l O] Section 16 of the SC Act provides a comprehens ive framework for appeals.
Section 16(1 )(b) is of particular relevance, and it reads as follows:
1 Superior Courts Act I O of 20 13.
2 Crim inal Procedur e Act 51 of 1977.
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'(I) Subject to section 15(1), the Constitution and any other law-
(a) ...
(b) an appeal agains t any decision of a Division on appeal to it, lies to the Supreme Court of Appeal upon special leave having been granted by the Supreme Court of Appeal.· (o", n emphasis)
[11] In Van Wyk v S, Gale/a v S3 the SCA clarified the position as follows:
'The jurisd iction of this Court to hear appeals from the l ligh Court whether as a cou11 of first instance. or on appea l is derived from this section (section 16(1 )(a) and (b) and t 9 of the /\et). Whereas under sect ion 20(4) of the SC Act. the special leave of this Court was on ly required in respect of an appl ication from a decision of the Full Cou11 (three judges) given on appeal to it, the special leave of this Court is now also required where leave to appeal is sought in respect of a decision of two judges, given on appeal to it.' (own emphasis)
[12] The applicant's appeal served before the full bench of this Court, although
differently constitut ed, which considered it and delivered a judgment. It follows
that this Court is functus officio. This Court does not possess the requisite
juri sdiction to grant leave to appeal a full cou1t of this Division against an appeal
judgment. The application is therefore procedurally defective and stands to be
dismissed.
Order
[13] R esultantly , the following orde r is made:
3 Van Wyk " S, Gale/a v S (20273 /2014, '.20448/2014) [20 14] LA SCA 152; [2014] 4A II SA 708 (SCA); 20 15 (I) SAC R 584 (SCA)(29 Septembcr2014) para 19.
The application for leave to appeal is dismissed.
MWESSELS
ACTING JUDGE OF THE HIGH COURT
NORTH WEST DIVISION, MAHIKENG
RD HENDRICKS
JUDGE PRESIDENT OF THE HIGH COURT
NORTH WEST DIVISION, MAHIKENG
Appea rances
Counsel for applicant
Instructed by
Counsel for the respondent
Instructed by
:Mr GA Mokaa
:GA Mokaa Attorneys
:Mahike ng
:Adv NB Goloda
:Director of Public Prosecutions
:Mahikeng
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