THE HIGH COURT OF SOUTH AFRI CA
MPUMALANGA DIVISION, MBOMBELA
CASE NUMBER: CC23/2025
(1) REPORTABLE: NO
(2) OF INTEREST TO OTHER JUDGES: NO
(3) REVISED.
M. MALAN GENI 21 August 2026
In the matter between:
THIMOTHY BHEKI ZW ANE APPLICANT
and
THE STATE REPSONDENT
Delivered: This judgment was handed down electronically by circulation to the parties and
their legal representatives by email transmission. The date and time for the hand-down of the
judgment is deemed to be 21 August 2026 at 10h00.
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JUDGMENT
MALANGENI AJ
[1] On 27 July 2026, the Applicant pleaded guilty in terms of section 112(2) of the Criminal
Procedure Act 51 of 1977 (“the Act”) to the following counts:
1.1 Murder in terms of the provisions of section 51(1) (g) of the Criminal Law
Amendment Act 105 of 1997 (“the CLAA”) read with section 1 of the Domestic
Violence Act 116 of 1998;
1.2 Unlawful possession of a firearm; and
1.3 Unlawful possession of ammunition.
[2] On 29 July 2026, the Applicant was sentenced as follows:
2.1 For count 1– life imprisonment;
2.2 For count 2 – three years imprisonment;
2.3 For count 3 – 12 months imprisonment;
2.4 Sentences on counts 2 and 3 were ordered to run concurrently with the sentence
imposed for that of count 1.
[3] The application before Court is for leave to appeal against sentence of life imprisonment
in terms of count 1of the charge. The grounds of appeal are that:
3.1 the court erred in finding that life imprisonment was proportionate;
3.2 the court erred by failing to properly assess substantial and compelling
circumstances cumulatively;
3.3 the court erred in underemphasising the guilty plea, remorse, and cooperation;
3.4 the court erred in underemphasising diminished moral blameworthiness;
3.5 the court erred in treating intoxication as neutral or aggravating only;
3.6 the court erred in failing to give proper weight to the absence of premeditation;
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3.7 the court erred in underemphasising first -offender status and rehabilitative
prospects;
3.8 the court erred in underemphasising pre-sentence incarceration;
3.9 the court erred by overemphasising retribution and deterrence;
3.10 the court erred in failing to distinguish this case from the most serious category
of murder.
[4] The Applicant filed written heads of argument whereas the Respondent made oral
submissions. Both parties referred this Court to different authorities that assisted this Court in
making an informed decision. In the main , the Applicant submits that there are reasonable
prospects that another court would find that the sentence of life imprisonment is
disproportionate, unjust and not the only appropriate sentence in the circumstances of this
matter. It was further submitted that a nother court may find that substantial and compelling
circumstances existed which justified a departure from the prescribed sentence of life
imprisonment. In opposing the application, the Respondent’s counsel argued that the trial court
did not misdirect itself and that it correctly applied the law to the facts.
[5] An application for leave to appeal is governed by section 17(1) (a) of the Superior
Courts Act 10 of 2013.This section provides that leave to appeal may only be given where the
judge or judges concerned are of the opinion that—
(i) the appeal would have a reasonable prospect of success; or
(ii) there is some other compelling reason why the appeal should be heard, including
conflicting judgments on the matter under consideration.
[6] The Supreme Court of Appeal (“the SCA”) in MEC for Health, Eastern Cape v
Mkhitha1 emphasized the essential requirements of leave to appeal as follows:
“[16] Once again it is necessary to say that leave to appeal, especially to this court, must not be granted
unless there truly is a reasonable prospect of success. Section 17(1)(a) of the Superior Courts Act 10
of 2013 makes it clear that leave to appeal may only be given where the judge concerned is of the
1 MEC for Health, Eastern Cape v Mkhitha and Another (1221/2015) [2016] ZASCA 176 (25 November 2016) at paras
16–17. The footnotes of the text are omitted, and the emphasis of the Court has been retained.
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opinion that the appeal would have a reasonable prospect of success; or there is some other compelling
reason why it should be heard.
[17] An applicant for leave to appeal must convince the court on proper grounds that there is a
reasonable prospect or realistic 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.”
[7] In an application of this nature, the test is whether there are reasonable prospects of
success and that another court might come to a different conclusion. In the oft quoted S v Smith2
the SCA took care to lay down this principle, in stating:
“[7] What the test of reasonable prospects of success postulates 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 prospects 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 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 prospects of success on appeal.”
[8] The test in question was supported by Schippers JA in Four Wheel Drive Accessory
Distributors CC v Rattan NO 3 when he said that leave to appeal should only be granted where
there exists “a sound, rational basis for the conclusion that there are prospects of success on
appeal.”
[9] When I imposed this type of sentence, I considered the traditional factors of punishment
as articulated in the locus classicus S v Zinn4, I further considered the interests of the victims
being the son of the deceased and her family (the victim impacts reports). My judgment on
sentence detailed the reasons or grounds that led to the sentence I imposed. I correctly applied
the relevant law dealing with section 51 (1) of the CLAA to the facts of the case. I took into
2 S v Smith 2012(1) SACR 567 (SCA) at para 7.
3 Four Wheel Drive Accessory Distributors CC v Rattan NO (1048/17) [2018] ZASCA 124; 2019 (3) SA 451 (SCA) (26
September 2018) at para 34
4 S v Zinn 1969 (2) SA 537 (A) at para 539H-540C read together with 540G.
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consideration all the factors raised as grounds of appeal which were, to mention a few: time
spent into custody, personal circumstances, state of health, intoxication, and moral
blameworthiness. What has been raised by the Applicant as grounds of appeal are flimsy or
not solid grounds. The application for leave to appeal lacks prospects of success. Furthermore,
I am not convinced that another court would arrive at a different conclusion to the one reached
by this Court. I am of the view that the application for leave to appeal must fail.
The order
[10] I, therefore, issue the following order:
1. The application for leave to appeal is accordingly refused.
Appearances:
For Applicant :
For Respondent :
Heard :
Judgment :
M.MALANGENI
ActingJudge of the High Court
Mpumalanga Division, Mbombela
Adv. M. J. Du Plessis
Instructed by Coert Jordan Inc.
Adv. F. E. Tsotetsi
Instructed by DPP's Office
13 August 2026
21 August 2026