IN THE HIGH COURT OF SOUTH AFRICA
NORTH WEST DIVISION, MAHIKENG
Not reportable
Case no: CA 46/2019A
Regional Court case no:RC39/2016
In the matter between:
KGOSIETSILE LAWRENCE MZELENI APPELLANT
and
THE STATE RESPONDENT
Coram: Reddy J et Wessels AJ
Heard: 11 April 2025 on the papers, reallocated on 19 March 2026
Delivered: This judgment was handed down electronically, circulated to the
parties’ representatives via email, uploaded to CaseLines, and released to
SAFLII. The date and time for the handing down of the judgment are deemed to
be 16h00 on 20 April 2026.
2
Summary: Criminal procedure – appeal against sentence – whether appeal
properly before this Court – non-compliance with peremptory provisions of rule
67(5), (6) and (7) of the Magistrates’ Courts Rules – appeal struck from the roll.
ORDER
The appeal is struck from the roll.
JUDGMENT
WESSELS AJ
[1] This is an appeal against a sentence of seven years’ imprisonment imposed
on 22 May 2019 by the Regional Court, Taung, following the appellant’s
conviction on a charge of culpable homicide. The appellant pleaded guilty in
terms of s 112(2) of the Criminal Procedure Act 51 of 1977 (‘the CPA’) and was
sentenced to 7 years imprisonment. Leave to appeal against sentence was granted
by the court a quo on 12 June 2019.
[2] This appeal forms part of the Special Appeals Project of the North West
High Court, initiated by the Honourable Judge President Hendricks to address
and eradicate the backlog of criminal appeals in this Division. The appeal was
3
initially allocated to a previous panel of judges. However, the judgment was not
scribed and consequently, due to this delay , the matter was reallocated to the
present panel on 19 March 2025.
[3] The notice of appeal was filed only in April 2025, nearly six years after
leave was granted. The appellant seeks to challenge the sentence on various
grounds, including that the trial court overemphasised the seriousness of the
offence and failed to follow the recommendations of a probation officer. The
respondent, the State, does not oppose the appeal, conceding that the sentence is
‘unreasonably excessive’.
However, before this Court can entertain the merits of
the appeal, it must first be satisfied that the appeal has been properly noted and
prosecuted in accordance with the peremptory provisions of the CPA and the
Magistrates’ Courts Rules (‘MCR’). That is the only issue for determination in
this judgment.
The legal framework
[4] Section 309(2) of the CPA provides:
‘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 unavailable any other magistrate of the
court concerned, may on application and on good cause shown, extend such period.’
[5] Section 309B(4)(a) of the CPA further provides that when leave to appeal
is granted, the clerk of the court must, in accordance with the MCR, transmit
copies of the record and all relevant documents to the registrar of the High Court
concerned.
4
[6] Rule 67(5) of the MCR peremptory and requires that, upon leave to appeal
being granted, the clerk of the court shall prepare a copy of the record and place
it before the judicial officer, who shall within 15 days furnish a written statement
setting out: (a) the facts found proved; (b) reasons for factual findings specified
in the grounds of appeal; and (c) reasons for rulings on questions of law or
evidence.
[7] Rule 67(6) then requires the clerk to inform the appellant that the
magistrate’s statement has been furnished. Rule 67(7) allows the appellant 15
days thereafter to amend the grounds of appeal. Only after compliance with these
steps does Rule 67(15)(a) oblige the clerk to transmit the record to the registrar
of the high court.
[8] These provisions are not directory; they are peremptory. This Court
recently restated that position in Mothoa v S 1 (CA27/2025) [2025] ZANWHC
187 (16 September 2025). In Mothoa, Petersen ADJP (with Hendricks JP
concurring) held:
‘[10] … The ineluctable deduction is that the record was prepared by the appellants’ attorneys
of record … since it is not certified by the clerk of court. Whilst it is the duty of the clerk of
court to prepare the record and to certify it, in casu , the final responsibility to ensure that the
appeal record is complete and in order, rests with the attorney.
…
[14] There has been non-compliance with the peremptory provisions of subrules 67(5), (6) and
(7). It is only once subrules 67(5), (6) and (7) have been complied with that the appeal record
is transmitted to the registrar of this Court by the clerk of court.
1 Mothoa v S (CA27/2025) [2025] ZANWHC 187 (16 September 2025) paras 10, 14, 19 and 20.
5
…
[19] It is peremptory that subrules 67(5), (6) and (7) be complied with before a matter is
transmitted on appeal to the High Court.
[20] Against the aforesaid exposition of the law, the appeal is not properly before this Court.’
[9] The court in Mothoa accordingly struck the appeal from the roll. I can find
no material distinction between that case and the present one.
Application to this appeal
[10] The record transmitted to this Court does not bear any certificate by the
clerk of the court as required by Rule 67(5). There is no indication that the clerk
of the court prepared the record or placed it before the trial magistrate.
[11] The notice of appeal filed in April 2025 appears to have been prepared by
the appellant’s current legal representatives, but had not been served on the clerk
of the Magistrate’s Court. The State’s heads of argument, while conceding the
merits, do not address these procedural defects. That is of no consequence , as a
concession by the respondent cannot cure non -compliance with peremptory
statutory provisions. The appeal is either properly before this Court or it is not. In
the present appeal, it is not.
[12] The appellant has a constitutional right of appeal in terms of s 35(3)(o) of
the Constitution. That right, however, must be exercised in accordance with the
procedural rules. Where an appellant or his legal representatives fail to follow the
clear, peremptory steps prescribed by the CPA and the MCR, the appeal cannot
proceed.
6
Conclusion
[13] The appeal is not properly before this Court. Accordingly, the following
order is made.
Order
The appeal is struck from the roll.
MWESSELS
ACTING JUDGE OF THE IDGH COURT
NORTH WEST DIVISION, MAHIKENG
I agree
AREDDY
JUDGE OF THE HIGH COURT
NORTH WEST DIVISION, MAHIKENG
7
Appearances:
For the appellant: Adv Mm Mabodja
Instructed by: Legal Aid Board
Mahikeng
For the respondent: Adv Mathule
Instructed by: Director of Public Prosecutions
Mmabatho