Reportable: ¥ES/ NO
Circulate to Judges: -¥ES/ NO
Circulate to Magistrates: -¥ES/ NO
Circul ate to Regional Magistrates: -¥ES/ NO
IN THE HIGH COURT OF SOUTH AFRICA
NORTHWEST DIVISION - MAHIKENG
In the matter between:
THAPELO ALFRED MALEKUTU
and
THE STATE
CASE NO: CA14/25
REGIONAL COURT CASE: RC 15/23
APPELLANT
RESPONDENT
Judgment is handed down electronically by distribution to the parties' legal
representatives by e-mail and released to SAFLII. The date that the judgment is
deemed to be handed down is 13 April 2026 at 16h00.
Summary
Summary: Criminal Procedure - Appeal - Automatic right of appeal in terms of
s 309(1)(a) of the Criminal Procedure Act 51 of 1977 - Condonation for late
noting of appeal - Proper forum - Section 309(2) of the CPA- Magistrate's Court
Rules, Rule 67(5)- Magistrate's statement of reasons - Peremptory requirement
- Failure to comply - Appeal struck from roll.
Held: An application for condonation for the late noting or prosecution of an
appeal from a magistrates' court must be brought to the magistrate in terms of s
2
309(2) of the CPA. The High Court is not a court of first instance for such
applications. Further, Rule 67(5) of the Magistrates' Courts Rules peremptoril y
requires the magistrate to furnish a written statement of reasons. The absence
thereof renders the appeal not properly before the High Court. Appeal struck from
the roll.
ORDER
1. The appeal is struck from the roll.
2. The appellant is granted leave to:
(a) Approach the Regional Court for condonation in terms
of section 309(2) of the Criminal Procedur e Act 51 of
1977.
JUDGMENT
MATLHAPE AJ
Introduction
[I] The appellant was arraigned in the Regional Court, Itsoseng , on a charge
of contravening the provisions s 3 read with ss 1, 55, 56(1), 57, 58, 59,60 and 61
of the Criminal Law Amendment Act (Sexual Offences and Related Matters) Act 1
read with ss 256, 257 and 281 of the Criminal Procedure Act2 ('CPA'), further
' Criminal Law Amendment Act (Sexual Offences and Related Matters) Act 32 of 2007.
2 Criminal Procedure Act 5 1 of 1977.
3
read with the provisions of s 51 ( 1) of Schedule 2 Part 1 of the Criminal Law
AmendmentAct 3 ('CLAA') as amended as well ass 92(2) and 94 of the CPA. He
was also charged with the contravention of the provisions of s 5(1) read with ss
1, 56A, 57,58,59,60 and 61 of the Sexual Offences and Related Matters
Amendment Act4 as well a charge of assault with intent to do grievous bodily
harm. The appellant was also charged with kidnapping.
[2] On 29 January 2025, the appe llant was found guilty as follows: Count 1
(Rape) and was sentenced to life imprisonment ; Count 2 (sexua l assault) and
sentenced the 5 yea rs imprisonment; Count 3 (Assau lt with intent to do grievo us
bodily harm) sentence d to two years imprisonment; and Count 4 (Kidnapping)
and was sentenced to 2 years imprisonm ent.
[3] The aforesaid sentences were ordered to run concurren tly in terms of s 280
of the CPA.
[4] Additionally, the trial court declared the appellant unfit to possess a firearm
in terms of the provision s of s 103 ( 1) of the Firearms Control Act5.
[5] The appellant appeals both the conviction and sente nce in terms of his
automatic right of appeal in terms of s 309(1) (a) of the CPA, having been
sentenced to life imprisonment by a regional court. The first proviso to s 309(l)(a)
affords an appellant sentenced to life imprisonment by a regional court under s
51 (1) of the CLAA the right to note such an appeal without having to apply for
leave.
3 Criminal Law Amendment Act I 05 of 1997.
4 Supra, fn I.
5 Firearms Control Act 60 of 2000.
4
[6] The notice of appeal was filed with the Registrar of this Court on 4 July
2025, accompanied by an application for condonativn for what was termed the
late filing of the appeal. In terms of the provisions of Magistrate's Court Rule 3
Criminal Law Amendment Act 105 of 1997. 4 67(5A)(a)(i), the appe llant had to
file a notice of appeal within ten days after the passing of the sentence
The Proper Noting and Prosecution of the Appeal
(7) Before the merits of this appeal may be considered, this Court is duty
bound to satisfy itself that the appeal has been properly noted and is properl y
before us. The Full Bench of this Division has recently, in a series of judgments,
provided clear and binding g uidance on the procedura l requirements for criminal
appea ls arising from a magistrate court. These authorit ies compel a preliminary
inquiry into the procedural regularity of every appeal.
[8] In Mothoa v ~, Petersen ADJP (with Hendricks JP concurr ing) conducted
a comprehen sive examination of the appeal procedure. The court held that s
309(2) of the CPA, in its current form, provides that the magistrate against whose
decision the appeal is to be noted may, on application and on good cause shown ,
extend the period for the noting or prosecution of the appeal. Section 309(2)
reads:
'An appeal under this section shall be noted and be prosecuted within the 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 unavailabl e any other magistrate of the court
concerned, may on appli cation and on good cause shown, ext~nd such period.'
6 Mothoa v S [2025 J Z/\NWI IC 187 ( 16 September 2025).
5
[9] The court in Mothoa held that there is no provision for the High Court to
grant condonation for the late noting of an appeal. The court stated7:
'The present version ofs 309(2) of the CPA difTers materially from the 1977 version. There is
no provi sion 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 fil ing of the appeal'
[ I 0] The F ull Bench further emphasised that where the magistrate's court
refuses a condonation application, the appellant's remedy lies in petitioning the
Judge President of this Division under s 309C(2)(a) of the CPA. Section
309C(2)(a) provides for the following:
'(2)( a) If any application
(i) for condonation;
(ii) for furt her evidence; or
(iii) for leave to appeal,
is refused by a lower court, the accused may by petition apply to the Judge President of the
High Court having juri sdiction to grant any one or more of the applications in question.'
[11] The High Court is not a court of first instance for such applications. Also,
in Botlhokoane v s'3, Wessels AJ (with Matlhape AJ concurring) addressed the
identical issue. The court traced the legislative history of s 309(2) and concluded
definitively9:
'The conclusion to be drawn is that the CPA provides for access to thi s Court on petiti on if an
applicati on for condonation in the Regional Court is refused. I can come to no other conclu sion
7 Op cit para 4.
8 Botfhokoane v S 12025) Z/\NW HC 186 (11 September 2025). 9 Jbidpara 16.
6
but to find that the application for condonation cannot be enterta ined by this Court , at least not
as a court of first instance.'
[12] The court in Botlhokoane struck the appeal from the roll, finding that the
appellant had made no application for condonati on to the Regional Court but
instead applied directly to the High Court. This, the court held, rendered the
condonation application incompetent.
[13] In the present matter, the appellant has similarly approached this Court
directly for condonation for the late prosecution of his appeal. There is no
indication on the record that any application for condonation was made to the
Regional Court, nor that such application, if made, was refused. The condonation
application before us is, therefore, incompetent and cannot be entertained.
[14] Additionally , this Court must be satisfied that the appeal has been properly
noted. In Botlhokoane, the court emphasised that noting and prosecuting an
appeal are distinct concepts, carried out in different forums. While an appeal is
noted in the Regiona l Court, prosecution occurs in the lligh Court. The Court
held that if the notice of appeal has not been filed with the court a quo, the appea l
would not have been properly noted.
[ 15) The notice of appea l filed in this matter does not bear the stamp of the
Assistant Registrar of the Regional Court, Itsoseng. This Court is therefore unable
to satisfy itself that the appeal was prop erly noted in terms of Rule 67(5A)(a) of
the Magistrates ' Courts Rules, which requires an appellant to note an appea l in
writing to the registrar or clerk of the court with in 10 days after the passing of
sentence. Rule 67(5A)(a) provides:
7
'(5A)(a) A person contemplated in the firs / proviso of section 309(J)(a) of the Criminal
Procedure Act, 1977, who wishes to appeal against his or her conviction or senlence 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 publi c instance, to the prosecutor concerned. '
[16] Furthermore, Rule 67(5) of the Magistrate's Court Rules imposes
peremptory obligation s upon the clerk of the court and the judicial officer
following the noting of an appeal. Rule 67(5) provides:
'Upon an application for leave to appeal being granted the registrar or clerk of the court shall
prepare a copy of the record of the case, including a transcript thereof if it was recorded in
accordance wit h the provisions of rule 66( I), and place such copy before the judi cial officer
who shall within 15 days thereafter furni sh to the registrar or clerk of the court a statement in
writing showing-
(a) the facts he or she found to be proved;
(b) his or her reasons for any finding of fact specified in the appellant's statement of grounds
of appeal; and
(c) his or her reasons for any rul ing on any question of law or as to the admission or rejection
of evidence so specified as appealed against.'
[17] The clerk is required to prepare a copy of the record and place it before the
judicial officer, who must, within 15 days, furnish a written statement setting out
the facts found to be proved, reasons for findings of fact, and reasons fo r rulings
on questions of law specified in the grounds of appeal. The record before us does
not reflect compliance with these provisions.
8
[I 8] In Mothoa, the Full Bench held that it is peremptory that subrules 67(5),
(6) and (7) of the Magistrate's Court Rules be complied with before a matter is
transmitted on appeal to the High Court. This lack of compliance results in this
appeal not being properly before this Court.
[19) The Constitutional Court in Strategic Liquor Services v Mvumbi NO and
Others10 emphasised the indispensability of reasoned judgme nts to the appeal
process. In this regard, the Constitutiona l Court held 11 :
• ... a reasoned judgment is indi spensable to the appeal process. Judges ordin arily account for
their decision by giving reasons- and the rule of law requires that they should not act arbitrarily
and that they be accountable. Furnishing reasons
"explains to the parties, and to the publi c at large whic h has an interest in courts being open
and transparent, why a case is decided as it is. It is a discipline which curbs arbitrary judicia l
decisions. Then, too, it is essential for the appeal process, enablin g the losing party to take an
informed decision as to whether or not to appeal or, where necessary, seek leave to appeal. It
assists the appeal Court to decide whether or not the order of the lower court is correct. And
finally , it provides guidance to the public in respect of similar matters".
[20] The principles enunciated in Strategic Liquor Services are directly
applicable to the present matter. This Court cannot properly adjudicate an appeal
without the benefit of the magistrate's reasoned statement under Rule 67(5). The
absence of such reasons, or at the very least having provided the magistrate with
the opportunity to furnish further reasons, constitutes not merely a procedural
irregularity but an infringement of the appellant 's right to a fair appeal , and indeed
an impediment to this Court's ability to discharge its appellate function .
an impediment to this Court's ability to discharge its appellate function .
10 Strategic Liquor Services v Mvumbi NO and Others (CC1 33/09) 12009] Z/\CC 17; (2009) 30 ILJ 1526 (CC); 20 l O (2) SA 92 (CC); 2009 ( I 0) BCLR l 046 (CC); [20091 9 BLLR 847 (CC) ( 18 June 2009). 11 Ibid para 16.
9
[21] Section 35(3) of the Constitution guarantees every accused person the right
to a fair trial, which includes the right of appeal to a higher court. A fair appeal
require s that the appeal court be placed in a position to properly evaluate the
correctness of the court a quo's decisions.
[22] The appellant's legal representative is reminded of the duty incumbent
upon legal representatives to acquaint themselves with the rules of this Court and
the peremptory provisions of the C PA and Magistrate 's Courts Rules governing
appeals.
[23] The procedural shortcomings identified in this appeal are not mere
technicalities. They go to the juri sdiction of this Court to entertain the appeal. As
held in Mothoa and Botlhokoane, an appeal that does not comply with these
peremptory requirement s is not properly before the High Court and falls to be
struck from the roll.
Conclusion
[24] In light of the foregoing , this Court cannot proceed to consider the merits
of the appeal. The appea l is not properly before us, and the condonation
application is incompetent.
[25] It bears emphasis that the procedural requirement s set out in the CPA and
the Magistrate's Courts Rules are not empty formalities. They serve the vital
purpose of ensuring that appeals are prop erly constituted, that the court a quo has
the opportunity to explain its reasoning, and that this Court is placed in a position
to adjudicate appeals on their true merits. The failure to comply with these
requirements und ermines the proper administration of justice a nd cannot be
countenanced.
10
Order
[26] Consequently, the following order is made:
1. The appeal is struck from the ro 11.
2. The appellant is granted leave to:
(a) Approach the Regional Court for condonation in terms
of section 309(2) of the Criminal Procedure Act 51 of
1977.
DMATHLAPE
ACTING JUDGE OF THE HIGH COURT
NORTH WEST DIVISION, MAHIKENG
I agree
MWESSELS
ACTING JUDGE OF THE HIGII COURT
NORTH WEST DIV ISION, MAHIKENG
Appearances
For appellant
Instructed by
For respondent
Instructed by
:Mr TR Semino
:Legal Aid South Africa
:Mahikeng
:Adv BT Chu lu
:Director of Public Prosecutions North West
:Mahikeng
II