THE SUPREME COURT OF APPEAL OF SOUTH AFRICA
JUDGMENT

Reportable
Case no: 434/2020
In the matter between:
RAPHOLO EDWIN MANYAKA              APPLICANT/APPELLANT
and
THE STATE

RESPONDENT

Neutral citation: Rapholo Edwin Manyaka v The State (434/2020)
[2022] ZASCA 21 (23 February 2022)
Coram:
MOCUMIE, SCHIPPERS, CARELSE and MABINDLA-
BOQWANA JJA and PHATSHOANE AJA
Heard:
14 September 2021
Delivered: This judgment was handed down electronically by circulation
to the parties’ representatives by email, publication on the Supreme Court
of Appeal website and release to SAFLII. The date and time for hand-down
of the judgment is deemed to be 09h45 on 23 February 2022.
Summary: Criminal law and procedure – condonation – special leave to
appeal in terms of s 16(1)(b) of the Superior Courts Act 10 of 2013 – court
of appeal entitled to consider new evidence in exceptional cases where
circumstances have changed after conviction and sentence in terms of
s 316(5) of the Criminal Procedure Act 51 of 1977.

ORDER
On appeal from: Gauteng Division of the High Court, Pretoria
(Southwood J and Goodey AJ sitting as a court of appeal):
The application for condonation is granted.
The application for special leave to appeal is granted.
The application to lead further evidence is granted.
The appeal on sentence in respect of counts 1 and 2 is upheld.
5        The order of the Gauteng Division of the High Court, Pretoria is set
aside on counts 1 and 2.
6      The matter is remitted to the magistrate to impose sentence afresh, in
respect of those counts, after due compliance with the provisions of s
276A(1)(a) of the Criminal Procedure Act 51 of 1977.
7    A report of a probation officer and/or a correctional official, must be
obtained within six weeks of delivery of this judgment.

JUDGMENT

Carelse JA (Mocumie and Mabindla-Boqwana JJA concurring):

[1] This is an application for special leave to appeal that came before
this Court, some 15 years after the incident, some 13 years after the
applicant was convicted and sentenced by the Pretoria Magistrate’s Court,
and some 11 years after his appeal against sentence was heard by the
Gauteng Division of the High Court, Pretoria (full bench). This application
was referred for oral argument in terms of s 17(2)(d) of the Superior Courts
Act 10 of 2013 and, if granted, the determination of the appeal itself. A

party seeking special leave must show that special circumstances exist to
warrant a further appeal.

[2] There are two further applications before this Court – an application
for condonation for the long delay in bringing this application and an
application to lead further evidence on appeal in terms of s 316(5) of the
Criminal Procedure Act 51 of 1977 (CPA).1 The organs of the State
involved with this applicant have not filed any answering affidavits. There
are accordingly no disputes of fact.

[3] The incident giving rise to the criminal charges against the applicant
arise out of a motor vehicle collision that occurred on the night of 30 June
2006 on Garsfontein Road, Pretoria, when the motor vehicle driven by the
applicant, who was attempting to overtake a motor vehicle, collided with a
motor vehicle being driven in the opposite direction, killing its two
occupants. At the time of the collision and according to the post-mortem
report, the two occupants of the other motor vehicle involved in the
collision were both under the influence of alcohol. At his trial the applicant
faced three charges. Counts 1 and 2 were culpable homicide arising out of
the death of the two occupants of the other motor vehicle that was involved
in the collision. Count 3 was that of negligent or reckless driving in terms

1 Section 316(5) of the Criminal Procedure Act 51 of 1977 (CPA) provides:
‘(a) An application for leave to appeal under subsection (1) may be accompanied by an application to
adduce further evidence (hereafter in this section referred to as an application for further evidence)
relating to the prospective appeal.
(b) An application for further evidence must be supported by an affidavit stating that –
(i)  further evidence which would presumably be accepted as true, is available;
(ii)  if accepted the evidence could reasonably lead to a different verdict or sentence; and
(iii) there is a reasonably acceptable explanation for the failure to produce the evidence before the
close of the trial.
(c) The court granting an application for further evidence must –
(i) receive that evidence and further evidence rendered necessary thereby, including evidence in
rebuttal called by the prosecutor and evidence called by the court; and
(ii) record its findings or views with regard to that evidence, including the cogency and the sufficiency
of the evidence, and the demeanour and credibility of any witness.’

of s 63(1) of the National Road Traffic Act 99 of 1996 (the RTA) in that
the applicant had driven through a ‘red robot, overtook on solid line’. The
applicant was found guilty on counts 1 and 2. On count 3 the magistrate
found that the traffic light was red and that in ‘driving over a red robot (the
applicant) was reckless and he is found guilty of reckless driving’.

[4] The evidence on count 3 included that of Sergeant Bekker who was
on the scene. He said that the traffic light in question was 1.7 kilometres
from the accident scene. Jacobus van der Walt, who also gave evidence on
this issue, said that there was a set of traffic lights at the intersection of
Garsfontein Road and De Villebois Road. He was travelling from west to
east on Garsfontein Road. He was stationary at the traffic light which was
red for him. He saw the applicant’s vehicle turning right from De Villebois
Road into Garsfontein Road where he skipped the red robot just before the
light became green ‘for me to drive on’. From there he drove behind the
applicant from which vantage point he witnessed the accident some 80
metres further.

[5] Before sentencing the applicant, the magistrate was told of a letter
written by the applicant to the parents of the deceased, in which he had
expressed his remorse to them and in which he sought their forgiveness.
He repeated these sentiments in evidence. The magistrate also took into
account that the applicant was 20 years old when the accident happened
and that he was in the second year of his tertiary education and, at the time
of sentencing, the applicant had completed his tertiary education.

[6] On count 1, the applicant was sentenced to three years’
imprisonment in terms of s 276(1)(i) of the CPA.2 This meant that the
applicant had to serve a minimum of one sixth of the sentence imposed on
him before he could be considered for correctional supervision. On count
2, he was sentenced to three years’ imprisonment, wholly suspended for
five years on condition that he was not convicted of culpable homicide
involving the driving of a motor vehicle. On count 3, he was sentenced to
a fine of R20 000 – or eighteen months’ imprisonment, wholly suspended
for five years on condition he was not over the period, convicted of a
contravention of s 63(1) of the RTA. His license was suspended for five
years. And lastly, he was declared unfit to possess a firearm in terms of the
Firearms Control Act 60 of 2000.

[7] The magistrate granted the applicant leave to appeal on the sentence
he imposed. On 8 March 2010, the full bench, in the exercise of its powers
of review, set aside the conviction and sentence on count 3 on the ground
that ‘there is no evidence of any reckless or negligent driving. There is no
evidence that anybody’s life, or property were in danger, related to the
applicant ‘“skipping” the robot’. In other words, the applicant’s act did not
result in any dolus directus or dolus eventualis, meaning the skipping of
the red traffic light did not endanger anyone’s life or property. There was
no appeal by the State against this order, as questionable as it may be. On
counts 1 and 2 the full bench found that there was a misdirection in that the
two counts should have been taken as one for the purpose of sentence and
that there was only one incident that resulted in two deaths. In the result,

2 Section 276 (1)(i) of the CPA provides:
‘(1) Subject to the provisions of this Act and any other law and of the common law, the following
sentences may be passed upon a person convicted of an offence, namely –
(i)  imprisonment from which such a person may be placed under correctional supervision in the
discretion of the Commissioner or a parole board.’

the full bench set aside the two sentences and replaced them with a sentence
of four years’ imprisonment in terms of s 276(1)(b) of the CPA, of which
one year was suspended for five years on condition that during the period
of suspension the applicant was not convicted of culpable homicide
involving the driving of a motor vehicle. The net result of the appeal was
that, instead of the applicant serving a possible one sixth of his sentence in
prison, he would have to serve a three year period in prison, this being done
without notice to the applicant of the full bench’s intention to increase the
sentence imposed. From a reading of the whole judgment, it appears that
the increase in sentence was erroneous and not that which may have been
intended by the court.

[8] In his affidavit in support of his applications (for condonation, to
lead further evidence on appeal and special leave to appeal), the applicant
stated that after the full bench delivered its judgment on 8 March 2010, he
complied with a directive to hand himself over to the Voortrekker
Correctional Centre (the Correctional Centre) within 48 hours.
Accompanied by his brother in law, he presented himself at the
Correctional Centre and was informed by an official that they were not in
possession of his court records and could therefore not detain him. He was
told to go home and once they were in possession of his records, they would
arrange to have him transported to the correctional centre. The applicant
provided his home address to the officials in this regard. The applicant
stated that he remained at this address. In the six and a half years that
followed this encounter, the applicant got married and at the time of the
urgent application, his wife was expecting their third child. He is gainfully
employed. None of this evidence is disputed.

[9] On 7 September 2016, some six and a half years later, a warrant was
issued for the applicant’s arrest. The State, and the relevant organs it
controls has failed to explain this extraordinary delay. On 22 September
2016, having been served with the warrant, the applicant brought an urgent
application in the Gauteng Division of the High Court, Pretoria (the high
court) to stay the warrant pending an application to reconsider the sentence
imposed by the full bench. Neukircher AJ who heard the urgent
application, and on 27 September 2016 made the following order:
‘34.1 The applicant is to deliver his application for reconsideration of the appeal under
case number A576/2009 (or whatever process he be so advised) within 15 days of date
hereof to whoever person or court he is so advised.
34.2 Pending finalisation of the proceedings set out in 34.1 (supra) the warrant of arrest
issued by Magistrate Mncube on 7 September 2016 authorising the arrest of the
applicant is stayed.
34.3. Pending finalisation of the proceedings set out in 34.1 (supra) the respondents are
hereby interdicted and restrained from arresting the applicant and handing him over for
the purpose of serving his sentence.
34.4 Should the provisions of paragraph 34.1 (supra) not be carried out within 15 days
of date hereof; this order will lapse immediately.
34.5 Each party shall pay their own costs of this application.’ (Emphasis added.)

[10] Pursuant to this order the applicant brought an application to this
Court for special leave to appeal the judgment and order of the full bench.
The applicant did not comply with paragraph 34.1 of Neukircher AJ’s order
of 27 September 2016. It is unnecessary to detail the explanation
particularly because the State conceded that the applicant has good
prospects of success in his appeal against the order of the full bench based
on the irregularity committed by the full bench which was to increase the
sentence without giving notice. For these reasons the condonation
application ought to be granted.

[11] The reasons set out in paras 8 and 9 above, amount to exceptional
circumstances. Accordingly, the application to lead further evidence
should be granted, as well as the application for special leave to appeal to
this Court.

[12] It is not disputed that the full bench misdirected itself materially by
increasing the applicant’s prison sentence without notice to him. (See
S  v  Bogaards).3 As a result of that, the sentence in respect of counts 1 and
2 cannot stand. For different reasons set out below, the magistrate’s order
on sentence in respect of these counts cannot be reinstated, as was
submitted on behalf of the State.

[13] In Jaftha v S4 , this Court held:
‘. . . that new evidence ought to be admitted to show that the sentence imposed ten
years previously is now inappropriate. Ordinarily, of course, only facts known to the
court at the time of sentencing should be taken into account but the rule is not invariable.
Where there are exceptional or peculiar circumstances that occur after sentence is
imposed it is possible to take these factors and for a court on appeal to alter the sentence
imposed originally where this is justified.’5 (Footnotes omitted.)

3. In S v Bogaards [2012] ZACC 23; 2013 (1) SACR 1 (CC), Khampepe J acknowledged that a court of
appeal is empowered to set aside a sentence and impose a more severe one. She said that at common law
there was no formal requirement for an appeal court to give an accused person notice when that court
was considering an increased sentence on appeal. The Constitutional Court held that it was necessary to
develop the common law so as to require notice to an applicant where an increase in the sentence is being
contemplated by the court of its own accord. Khampepe J said the following at para 72:
‘It is worth emphasising that requiring the appellate court to give the accused person notice that it is
considering an increase in sentence or imposing a higher sentence upon conviction for a substituted
offence, does not fetter that court’s discretion to increase the sentence or to impose a substituted
conviction with a higher sentence. The court may clearly do so in terms of s 22(b) of the Supreme Court
Act and s 322 of the CPA. Elevating the notice practice to a requirement merely sets out the correct
procedure according to which the court must ultimately exercise that discretion. The notice requirement
is merely a prerequisite to the appellate court’s exercise of its discretion. After notice has been given and
the accused person has had an opportunity to give pointed submissions on the potential increase or the
imposition of a higher sentence upon conviction of another offence, the appellate court is entitled to
increase the sentence or impose a higher sentence if it determines that this is what justice requires.’
See also S v De Beer [2017] ZASCA 183; 2018 (1) SACR 229 (SCA).
4 Jaftha v S [2009] ZASCA 117; 2010 (1) SACR 136 (SCA) (Jaftha) para 15.
5  S v Karolia [2004] ZASCA 49; 2006 (2) SACR 75 (SCA) para 36.

The new evidence that the applicant requests this Court to consider is not
disputed.

[14]  In what follows, I will have regard to the material facts known to
the trial court when sentence was imposed on 2 December 2008 and the
undisputed additional facts that the applicant has placed before this Court
some 13 years later. On 30 June 2006 when the applicant negligently
caused the deaths of the deceased, he was 20 years old, which is relatively
young. He had no previous convictions and was in his second year of his
tertiary education. Prior to him being sentenced, he had written to the
families of the deceased to express his remorse and to seek their
forgiveness for what had happened.

[15] The applicant is not the cause of the inordinate delay that followed
since the collision on the night of 30 June 2006. Over the intervening 15
years, the applicant who is now a 35 year old adult, has married. In
September 2016 his wife was expecting their third child. He is currently
gainfully employed. There is nothing to rebut the fact that over the 15 years
the applicant has led a socially responsible and crime free life. As a
licensed driver there is nothing to suggest that some 15 years on in his life,
his driver’s license should be suspended. However, this remains a serious
offence. It is without doubt that the applicant cannot go unpunished. I agree
with the magistrate that direct imprisonment was the appropriate sentence
at the time, but due to the special circumstances of this case, which I have
outlined above, I am of the view that correctional supervision will be most
appropriate.

[16] Correctional supervision takes into account the seriousness of the
offence committed, the interests of society, particularly those of the two
families as part of society at large. It incorporates principles of restorative
justice which are based on the rehabilitation of an offender outside of
prison. This is to ameliorate the harshness of direct imprisonment in
circumstances presented to this Court, after a very long delay in
implementing the order of committal. The delay cannot be attributed to the
conduct of the applicant but to the relevant government department
officials. It takes into account the personal circumstances of the applicant
which came into existence after this long delay.

[17] It has been stated over and over again in a number of cases6 that
sentences of correctional supervision in terms of s 276(1)(h) of the CPA7
are not foreign to the offence of culpable homicide committed while
driving a motor vehicle, that led to devastating consequences. S v Naicker8,
a case of culpable homicide involved a 30 year old appellant who was a
first offender and in regular employment at the time of the commission of
the offence, and whose parents depended on him for support; in this case it
was found that the circumstances were appropriate for a fresh sentence of
correctional supervision to be considered. Referring to the decision of R v
Swanepoel,9 the Court held:

6 S v Naicker [1996] ZASCA 138; [1997] 1 All SA 5 (A); S v Omar 1993(2) SACR 5 (C). R v Swanepoel
1945 AD 444 at 448. S v R 1993 (1) SA 476 (A) at 480F-J. See also S v Kruger 1995 (1) SACR 27 (A)
at 31b-f.
7 Section 276(1) of the Criminal Procedure Act 51 of 1977 provides that: (1) Subject to the provisions of
this Act and any other law and of the common law, the following sentences may be passed on a person
convicted of an offence namely
(a) . . .
. . .
(h) correctional supervision;
(i) imprisonment from which such a person may be placed under correctional supervision in the discretion
of the Commissioner or a parole board.’
8 Footnote 7 paras 3 -14.
9 Footnote 7 para 15.

‘In reaching the conclusion that the appellant’s conduct did not warrant a sentence of
imprisonment I have not overlooked the fact that a death and serious injury resulted
from the appellant’s negligence.’

[18] In the present case it is the changed circumstances that warrant a
reconsideration of the sentence imposed. Reference to case law is simply
to illustrate a point that the imposition of correctional supervision has been
considered in cases of culpable homicide, where appropriate. The
advantages of correctional supervision have been mentioned in a number
of cases, in particular S v R10 where the court stated:
‘. . . As to the suitability of a sentence of correctional supervision: Professor Louis P
Carney (Adjunct Professor of Sociology, Chapman College, Orange County,
California) writes as follows:
“No one can dispute the need for strict justice, nor can anyone with a modicum of reason
challenge the premise the society must show its disapproval of criminal behaviour by criminal
sanction. But when punishment is taken to an inflexible extreme, or when a reconstructive
purpose is denied because of the punishment philosophy, then criticism is warranted. Criminal
justice thinking has been distressingly preoccupied with the belief that treatment and
punishment are polar opposites, and never the twain shall meet. They are, on the contrary,
inseparable. The necessity of punishment equally affirms the necessity of redemption. We
punish for several different reasons, but essentially to impel an offender towards a more
appropriate norm of behaviour. Inflexibly brutal punishment is not consonant with restoration
of the individual. A balanced correctional philosophy recognises that some criminal behaviour
is so outrageous or so persistent as to be beyond positive influence at a given time. Protracted
incarceration of this type of offender may be in order. But most offenders should be quickly
decarcerated to offset the inimical prison experience and dealt with in the community”.’

[19] Correctional supervision can be imposed with appropriate
conditions to constitute a suitably severe sentence.11 It allows a person to
serve a non-custodial sentence, promotes the integration of a person back

10 Footnote 7.
11 S v Ingram 1995 (1) SACR 1 (A) at 9E-F.

into the community and has rehabilitative benefits.12 The exceptional
circumstances of this case and the favourable personable circumstances of
the applicant would render correctional supervision appropriate, if the
applicant is found to be a suitable candidate. And albeit distinguishable
from Jaftha, it falls within that category of exceptional circumstances
envisaged in s 316(5) of the CPA and in a long line of cases that followed
Jaftha, namely that new circumstances that were presented long after the
imposition of sentence, were considered by this Court and a different
sentence to that imposed by the court of first instance, and the full court
was imposed.

[20] Section 276(1)(i) of the CPA13 is also an alternative sentencing
option which must also be weighed. A sentence of direct imprisonment
under s 276(1)(i) of the CPA (in the discretion of the Commissioner of
Correctional Services) may have been appropriate 13 years ago when the
applicant was initially sentenced. A sentence of direct imprisonment under
s 276(1)(i) (in the discretion of the Commissioner of Correctional Services)
would mean that the applicant would have to serve a term of direct
imprisonment when other appropriate sentences are available for his
peculiar circumstances. Suffice to state that to imprison the applicant at
this stage, even for a sixth of the three years’ imprisonment, as Schippers
JA proposes, will not (after this long delay) be in the interests of justice.

[21] The long delay in bringing finality to the matter and not knowing
when the officials would come has hung like a sword over the applicant’s
head. Imprisonment at this time would result only in retribution, which is

12 Section 50(1)(a) of the Correctional Services Act 111 of 1998.
13 Footnote 8.

not in the interests of justice. In reaching this conclusion, I have not
overlooked the fact that two young men have died as a result of the
applicant’s conduct; it is unfortunate that intervening circumstances which
cannot be ignored have arisen in this case, through no fault of the applicant.

[22]  In conclusion, the Department of Correctional Services, which is
responsible for implementing correctional supervision, did not file a report
as required under s 276(1)(h) of the CPA which, in my view, is the most
appropriate sentence. Without a report from a probation officer or a
correctional official, this Court would not be in a position to impose a
sentence under section 276(1)(h) of the CPA. However, in line with the
approach adopted in S v Ningi14 as well as the exceptional circumstances
in this case, it is appropriate to remit the matter to the magistrate to obtain
a pre-sentence report and consider imposing a sentence afresh, under s
276(1)(h) of the CPA.
[23] This approach was recently reaffirmed by this Court in S v Botha15
as follows:
‘In S v Samuels the following was stated: ‘Sentencing courts must differentiate between
those offenders who ought to be removed from society and those who, although
deserving of punishment, should not be removed. With appropriate conditions,
correctional supervision can be made a suitably severe punishment, even for persons
convicted of serious offences’. The appellant certainly does not fall within the category
of persons who need to be removed from society. . . . I am of the view, in all the
circumstances, that consideration should be given to the imposition of a sentence under
s 276(1)(h). Since the provisions of s 276A(1)(a) of the CPA must be complied with

14 S v Ningi 2000 (2) SACR 511 (A) para 9.
15 Botha v S (901/2016) [2017] ZASCA 148 para 46.

before consideration of such a sentence can take place, it is necessary to remit the matter
to the court a quo to comply with these provisions and to consider the sentence afresh.’
[24]  In the result the following order issues:
The application for condonation is granted.
The application for special leave to appeal is granted.
The application to lead further evidence is granted.
The appeal on sentence in respect of counts 1and 2 is upheld.
The order of the Gauteng Division of the High Court, Pretoria is set
aside on counts 1 and 2.
6       The matter is remitted to the magistrate to impose sentence afresh,
in respect of those counts, after due compliance with the provisions
of s 276A(1)(a) of the Criminal Procedure Act 51 of 1977.
A report of a probation officer and/or a correctional official, must be
obtained within six weeks of delivery of this judgment.

____________________
JUDGE OF APPEAL
Z CARELSE

Schippers JA (Phatshoane AJA concurring)
[25] I have had the benefit of reading the majority judgment by my
colleague, Carelse JA. I am in respectful disagreement with the conclusions
reached and the order issued, for the reasons that follow. There are
essentially two issues in this application for leave to appeal against
sentence only, referred for oral argument before us in terms of s 17(2)(d)

of the Superior Courts Act 10 of 2013. The first is whether the applicant
has demonstrated the existence of exceptional circumstances justifying the
admission in evidence of facts which arose after his conviction and
sentence on two counts of culpable homicide. The second is whether the
sentence for these crimes imposed by the North Gauteng Division of the
High Court, Pretoria (the high court), namely four years’ imprisonment of
which one year was conditionally suspended for five years, is appropriate
in the circumstances.

[26] The facts are uncontroversial. The applicant was tried in the Pretoria
Magistrate’s Court on two counts of culpable homicide and one count of
reckless driving, arising from a collision which occurred on 30 June 2006
in Garsfontein Road, Pretoria. Two State witnesses, Mr and Mrs van der
Walt, who were in a vehicle travelling behind a blue Polo vehicle (driven
by the applicant) testified that even before the collision occurred, the Polo
was being driven recklessly. It had jumped a red traffic light. Mr van der
Walt reduced his speed so as to maintain a safe distance behind the Polo.
Shortly thereafter the Polo overtook a vehicle in its path, causing a collision
with an oncoming Opel Corsa vehicle in the lane in which the Corsa had
been travelling. The Corsa landed on its roof, off the road in a veld and its
occupants were flung from the vehicle. Both died as a result of the
collision.

[27] The applicant’s version throughout was that he was not responsible
for the collision and that it had occurred in his lane of travel when the driver
of the Corsa had overtaken a vehicle in the Corsa’s path. This, despite the
fact that the applicant had informed a police officer who attended the scene
that he had overtaken a vehicle when the collision occurred. The magistrate
rejected the applicant’s version as ‘a blatant lie’. The applicant protested

his innocence till the very end – even after his conviction and during the
sentencing phase of the trial.

[28] Ms Vanessa Naidoo, a probation officer called as a witness by the
defence, testified about the applicant’s refusal to accept responsibility for
the collision, and his lack of empathy and remorse. She said:
‘Despite the Court’s rulings that the accused was found guilty of reckless driving, he
continues to dispute this by affirming his innocence. It is difficult therefore to accept
that he is truly remorseful for his actions. In the past two years it is shocking that he has
not even offered his condolences to the two families. After the accident, he stood aside
from the scene with his passenger, and did not even render assistance for his later
victims. This again is an indication of his lack of empathy, and compassion. In the last
two years he has not even confided in his family about the fatal incident, and this
remains an area of concern in the case of the accused. Had he shown remorse and
repentance, his family would have been aware of his present circumstances. His family
would have undoubtedly supported the deceased’s family during their bereavement.
The offence of reckless driving is an extremely serious offence, and is even more
serious than negligent driving although being a licensed driver his lack of remorse in
the present case makes him a further danger on the roads as he has limited insight into
the severity of his actions.’

[29] On 2 December 2008 the applicant was sentenced on the first count
of culpable homicide to three years’ imprisonment in terms of s 276(1)(i)
of the Criminal Procedure Act 51 of 1977;16 and on the second, to three
years’ imprisonment wholly suspended for a period of five years, on certain
conditions. He was also convicted of reckless driving and sentenced to fine
of R20 000 or 18 months’ imprisonment, conditionally suspended for a

16 Section 276(1)(i) of the Criminal Procedure Act 51 of 1977 provides that the following sentence may
be imposed on a person convicted of an offence, namely ‘imprisonment from which such a person may
be placed under correctional supervision in the discretion of the Commissioner or a parole board’.

period of five years. He was granted leave to appeal against conviction and
sentence.

[30] On 8 March 2010 the high court (Southwood J and Goodey AJ) set
aside the conviction and sentence on the charge of reckless driving,
purportedly in the exercise of its review powers: the judgment erroneously
states that what was before it was an appeal against sentence only. Nothing
however turns on this, as only the sentence is before us in this application
for leave to appeal. The convictions of culpable homicide were taken
together for the purpose of sentence and the high court sentenced the
applicant to four years’ imprisonment of which one year was suspended
for a period of five years on condition that he was not convicted of culpable
homicide involving the driving of a motor vehicle. The high court
increased the sentence without giving notice to the applicant of its intention
to do so.

[31] The applicant did not appeal the sentence imposed by the high court.
On 10 March 2010 he reported to the Department of Correctional Services
(the Department) to serve his sentence. Officials of the Department
however informed the applicant that they were not in possession of the
documents relating to his sentence and therefore could not detain him.
Instead of immediately making the necessary enquiries and taking steps to
obtain the documents, they inexplicably told the appellant to return home
and advised him that officials of the Department would fetch him when
they were in possession of the necessary documents.

[32] What happened next between March 2010 and September 2016 can
only be described as a major blunder by the Department. For more than six
years it made no attempt to ensure that the sentence imposed on the

applicant was carried out. Worse, there was no explanation by the
Department or any government official for the delay. This, despite the fact
that the Minister of Justice and Correctional Services as well as the Head
of Correctional Services were joined as parties in the proceedings in the
high court before Neukircher AJ.

[33] On 7 September 2016 the applicant was instructed to report to the
Voortrekker Correctional Centre to serve his sentence. On 27 September
2016 he obtained an order from the high court (Neukircher AJ) staying the
warrant issued for his arrest and directing him to ‘deliver his application
for reconsideration of the appeal’ within 15 days of the date of the order,
failing which the order would lapse immediately. The applicant failed to
take any steps to lodge an application for special leave to appeal and the
order lapsed.

[34] Thereafter, the conduct of the applicant and his attorney in launching
the application for special leave was characterised by slackness and
sloppiness. It is unnecessary to outline the entire chronology. Suffice it to
say that there were long periods of delay that were not explained
adequately, or at all. It is trite that an applicant must give a full and
reasonable explanation for the delay which must cover the entire period of
delay.17 In his heads of argument the applicant submitted that after the
judgment by Neukircher AJ he had immediately set in motion an
application for special leave to appeal to this Court.

[35] That is not so. It had taken the applicant from 27 September 2016 to
30 May 2018 – a year and eight months – to prepare an application for

17 Van Wyk v Unitas Hospital and Another (Open Democratic Advice Centre as Amicus Curiae) [2007]
ZACC 24; 2008 (2) SA 472 (CC) para 22.

leave to appeal. The explanation for this long delay was hopelessly
inadequate. Even then, the application was defective and was eventually
filed on 6 May 2019 – a year later, with no application for condonation for
the late filing of the application for leave to appeal, and no explanation for
the further delay. On 3 June 2019 the registrar of this Court had to inform
the applicant’s attorney to file a condonation application. In effect then, it
had taken the applicant from 27 September 2016 to 6 May 2019 – nearly
two years and eight months – to file his application for leave to appeal. An
application for the late filing of his heads of argument was brought only on
25 January 2021. His application to adduce further evidence on appeal was
brought in August 2021.

[36] What all of this shows is that the applicant and his attorneys are
solely responsible for any delay after the granting of the order by
Neukircher AJ on 27 September 2016 and August 2021 – almost five years.
I have no doubt that but for the gross irregularity in increasing the
applicant’s sentence without notice to him,18 condonation of the late filing
of the application for leave to appeal would have been inappropriate.

[37] The evidence concerning events after the imposition of sentence
which the applicant seeks to admit on appeal, which he says, constitute
exceptional circumstances, is essentially the following. A period of 11
years has passed since the imposition of his sentence by the high court. In
that time, the applicant got married in May 2012. He has two children aged
11 and 8 respectively, and in September 2016 his wife was expecting their
third child. He is gainfully employed. The applicant contends that sending
him to prison would have no effect on his rehabilitation because the facts

18 Footnote 3.

show that he has ‘rehabilitated himself’ and has become a useful member
of society. He is not responsible for the six-year delay in not serving his
sentence.

[38] Whether facts coming into existence after the conclusion of a trial
should be admitted in evidence is governed by principle. In S v Verster19 it
was held that when deciding an appeal, a court determines whether the
judgment appealed is right or wrong according to the facts in existence at
the time it is delivered, and not according to new circumstances which
came into existence afterwards. This principle has consistently been
followed by this Court.20 It is however not inflexible: in exceptional
circumstances a court will take into account facts which have arisen after
the trial to ensure that justice is done.21

[39] The courts have been reluctant to lay down a general definition of
the phrase ‘exceptional circumstances’ as each case must be decided on its
own facts. What is clear from the cases however is that what is typically
contemplated by the words ‘exceptional circumstances’ is something out
of the ordinary, markedly unusual, rare or different, and to which the
general rule does not apply.22

[40] Applied to the present case, there is nothing extraordinary or
markedly unusual about the appellant’s personal circumstances. Had he,
for example, been called upon to serve his sentence after one or two years
of reporting to the Department instead of six years, he could hardly have

19 S v Verster at 236A-D.
20 Footnote 6. See in this regard Karolia and the authorities cited in para 49.
21 Ibid paras 50-51, followed in Jaftha.
22 MV Ais Mamas Seatrans Maritime v Owners MV Ais Mamas and Another 2002 (6) SA 150 (C) at
156I-157C, affirmed by this Court in Avnit v First Rand Bank Ltd [2014] ZASCA 132 para 2 and by the
Constitutional Court in S v Liesching and Others [2018] ZACC 25; 2019 (1) SACR 178 (CC) para 133.

argued that he should not be sent to prison because in the interim he got
married, had children and was gainfully employed. These personal
circumstances, which came into existence after he was sentenced, on the
facts of this case, are irrelevant – they cannot become relevant by the
effluxion of time.

[41] What remains is the long period of delay of some 13 years between
the date of the imposition of sentence – December 2008 – and the hearing
of the application for special leave to appeal. As already stated, the entire
period of delay cannot be laid at the door of the Department. As indicated
above, the applicant and his attorneys are solely responsible for any delay
after the granting of the order by Neukircher AJ in September 2016 and the
date of his application for leave to adduce further evidence on appeal in
August 2021 – almost five years.

[42] Concerning the delay by the Department in calling upon the
applicant to serve his sentence, in my opinion Malgas v S,23 decided by this
Court, provides a complete answer. The appellants were found guilty of
theft and housebreaking with intent to steal and theft in the regional court,
Beaufort West. In March 2003 they were sentenced to lengthy terms of
imprisonment. All of them had been granted bail pending the hearing of
their appeals against conviction and sentence in the Western Cape High
Court, Cape Town (the Cape High Court). The appeals were heard more
than eight years later in June 2011. All the appellants’ appeals against
conviction were dismissed and certain of the appeals against sentence
succeeded. Subsequently, they were granted leave to appeal to this Court
only against sentence.

23 Malgas v S [2013] ZASCA 90, 2013 (2) SACR 343 (SCA).

[43] It was common cause that there was only one ground to be
considered on appeal by this Court: whether the eight-year delay from the
imposition of sentence by the magistrate to the hearing of the appeal in the
Cape High Court, in and of itself justified a lighter sentence.24

[44] I can do no better than quote this Court’s conclusions:
‘There can be no automatic alleviation of sentence merely because of the long interval
of time between the imposition of sentence and the hearing of the appeal for those
persons fortunate enough to have been granted bail pending the appeal. . . . Although
from time to time the long delay between the passing of a custodial sentence and the
hearing of an appeal may justify interference with that sentence, it is only in truly
exceptional circumstances that this should occur. Each case must be decided on its own
facts.
The appellants have adopted a supine attitude to the hearing of their appeal. Their
attitude to this case throughout has been to adopt the attitude of a nightjar in the veld:
do as little as possible, hope that nobody will notice and expect that the problem will
go away. Fortunately for the administration of justice, the appellants do not enjoy a
nightjar’s camouflage. They may have been hidden but they have not been invisible.
It will be hard on the appellants and their families that, ten years after their sentencing
by the magistrate, they should now have to report to jail to commence serving their
sentences. We have anxiously reflected upon the needs of justice in this case, including
the requirement that this court should show mercy to and compassion for our fellow
human beings. Having done so, the conclusion remains inescapable that, if this court
were to regard this case as yet another “exception”, it would undermine the
administration of justice. The appellants are to blame for the long delay in bringing this
matter to finality. The predicament in which the appellants find themselves is largely
of their own making.’25

24 Ibid para 17.
25 Ibid paras 20-22.

[45] The applicant’s position is no different. While the Department is to
be blamed for its conduct in the matter, the mere passage of time between
the imposition of sentence, the notice to him to start serving his sentence
and the hearing of this application – for which the Department and the
applicant are both responsible – does not, and cannot, automatically lighten
his sentence. Neither does it constitute an exceptional circumstance. At all
times the applicant knew that he had been convicted of two counts of
culpable homicide and that he had to serve his sentence. He adopted an
indifferent and a supine attitude to his conviction and sentence: he did
nothing after reporting to serve his sentence for some six years, made no
enquiry about it, carried on with his life as if he had never been sentenced,
and hoped that the problem would go away.

[46] What is worse, unlike the appellants in Malgas whose crimes
involved the violation of rights to property, the applicant’s crimes had
devastating impacts on two families and changed their lives forever. In this
regard the evidence before the trial court was the following:
‘The deceased, Jakobus Johannes Opperman was the oldest sibling of two younger
brothers. He was 24 years old at the time of his death. According to the family, he was
completing his internship with a separate company, and was about to enter into a
business partnership as financial director of “Danross Highlands”, . . . their family
business. He, and his friend, Mr Bezuidenhout [were] travelling to a braaivleis when
the fatal accident took place. Attempts to reach the Bezuidenhout family have been
unsuccessful. It is believed that the mother of the deceased is very ill at this stage, and
is a pensioner . . . This is Mrs Opperman’s version of her experience.
“She has been on medication since the offence to assist her [to] cope and continues to
receive weekly therapy from her counsellor. She has been unable to fulfil her role as
educator effectively due to her emotional state, and was booked off for [12] months in
the past two years. … She is visibly disturbed by the offence, . . . and she maintains that
the hardest part for her to deal with is to face the accused in Court each time for the past
two years”.’

[47] In this regard, the conclusion by the Constitutional Court in
Mthembu26 is apposite:
‘A delay in the execution of the sentence not only affects the accused, but also affects
the victims of crimes and undermines the credibility of the criminal justice system. It is
imperative that once a sentence is imposed it must be executed as soon as reasonably
possible and the court order must be complied with promptly.’

[48] The applicant is not unintelligent. At the time of the trial, he was 22
years old and in his final year of university studies. It is beyond question
that had he made enquiries or taken any steps to carry out his sentence,
there would have been no delay and he would not be in the position in
which he now finds himself. It is this apathetic and supine attitude by the
applicant that distinguishes his case from Jaftha. There, the appellant’s
explanation for a ten-year period of delay between conviction and sentence
and the lodging of his appeal, was that he had moved from his place of
residence and had not heard from his attorney after the appeal had been
lodged. He assumed that the appeal had succeeded and that he was a free
man.27

[49] It is clear from Mthembu that the applicant was under a duty to make
enquiries at the Department in order to serve his sentence after he had been
sent home and told that the Department would contact him. Mr Mthembu
was sentenced to 15 years’ imprisonment for armed robbery and illegal
possession of fire arms and ammunition. Whilst out on bail in 2003, he
petitioned this Court for leave to appeal against his conviction and
sentence. It was refused. He was then required to report to the clerk of the
court in Vereeniging to serve his sentence. He failed to do so. He was

26 Mthembu v S [2010] ZACC 8; 2010 (1) SACR 619 (CC) para 8.
27 Footnote 4 para 17.

apprehended at his home six years later in 2009 and only then started
serving his sentence. Mr Mthembu applied for leave to appeal to the
Constitutional Court, alleging that his arrest after more than six years
infringed his right to freedom and security of the person under the
Constitution. He contended that he could not at the age of 60 be expected
to serve his sentence and that he should receive a wholly suspended or non-
custodial sentence.

[50] The Constitutional Court rejected this contention. It refused leave to
appeal and said:
‘Convicted persons out on bail pending appeal or application for leave to appeal are
under an obligation to ascertain the outcome of the appeal processes and to present
themselves to serve their sentences if the appeal processes fail. This obligation in fact
formed part of the applicant’s bail conditions. The applicant was legally represented
throughout those processes. He is an educated person who held a senior position as a
director of a prominent football club. His allegation that for six years he was unaware
of the outcome of the application for leave to appeal, despite repeated efforts to
ascertain the outcome cannot be accepted.’28

[51] For these reasons, the applicant has simply not made out a case of
exceptional circumstances for the admission of the further evidence on
appeal. It is not in the interests of justice that it be admitted.

[52] I come now to the sentence. The applicant was not given an
opportunity to make submissions concerning the increase of his sentence
and the high court’s order must be set aside. Before us, counsel on both
sides agreed that the matter should not be remitted to the high court and
that this Court should determine an appropriate sentence.

28 Footnote 27 para 4.

[53] Senior counsel representing the applicant made the following
submissions. The finding by Neukircher AJ that the delay in the applicant
serving his sentence was not as a result of his actions but those of the State,
‘should receive this Court’s imprimatur’. The constitutional right to a fair
trial which includes the right to have a trial begin and conclude without
unreasonable delay, should be interpreted as encompassing a right ‘that the
applicant serves his sentence as soon as possible’. A sentence of
incarceration is inappropriate because the applicant has rehabilitated
himself and become a useful member of society.

[54] These submissions can be dealt with shortly. They have no merit. To
uphold the finding by Neukircher AJ would be inconsistent with the
principles laid down in Mthembu and Malgas. The right to a fair trial
enshrined in s 35(3)(d) of the Constitution does not include any right that
an accused person must serve his sentence as soon as possible.29 If the
applicant truly has become a useful or responsible member of society, he
would have taken steps to serve his sentence.

[55] The truth, as Ms Naidoo testified at the trial, is that the applicant has
not accepted responsibility for the collision. He has shown no remorse. He
lacks empathy and compassion, and has limited insight into the severity of
his actions. On the facts, the inference is inescapable that this attitude on
the part of the applicant has not changed. His focus is solely on himself,
his family and his future: the interests of society and the plight of his
victims do not matter. It is disturbing that in all his affidavits filed in this
Court, there is not a single reference to the nature and seriousness of the

29 Section 35(3)(d) of the Constitution provides:
‘Every accused person has a right to a fair trial, which includes the right –
. . .
(d)  to have their trial begin and conclude without unreasonable delay.’

crimes of which he has been convicted, let alone an appreciation by the
applicant of their gravity. Likewise, there is nothing in the affidavits
showing that he has accepted responsibility for his crimes, and no hint of
any acknowledgment by the applicant of the trauma and pain caused to the
families of the victims. He addressed a letter of apology to them only two
years after the incident, and then during the sentencing phase of the
proceedings.

[56] In these circumstances the submission that the applicant has
rehabilitated himself, rings hollow. The cases make it clear that an accused
must take the court fully into his confidence in order for the court to assess
the sincerity of his penitence and remorse.30 Genuine contrition comes only
from an appreciation and acknowledgement of the extent of one’s error.31

[57] It is trite that sentencing is pre-eminently a matter for the discretion
of the trial court and that an appellate court should only alter a sentence if
that discretion has not been judicially and properly exercised, namely
where the sentence is vitiated by irregularity, misdirection or is
disturbingly inappropriate.32

[58] As this Court said in S v Holder,33 an appropriate sentence is one
based on a balanced consideration of the factors which a court is required
to take into account in the imposition of sentence. A sentence which is too
light is as wrong as one that is too severe.34 The balancing exercise carried
out by the trial court in relation to the seriousness of the crime, the interests

30 S v Seegers 1970 (2) SA 506 (A) at 512G-H; S v Morris 1972 (2) SA 617 (A) at 620H-621A.
31 S v Matyityi [2010] ZASCA 127; 2011 (1) SACR 40 (SCA) para 13.
32 S v Rabie 1975 (4) SA 855 (A) at 857 D-E; Moswathupa v S [2011] ZASCA 172; 2012 (1) SACR 259
(SCA) para 4.
33 S v Holder 1979 (2) SA 70 (A) at 75A.
34 Ibid 32 at 80D-E.

of society and the applicant’s personal circumstances, as well as its
consideration of various sentencing options, cannot be faulted.

[59] In the light of the above I would make the following order:
The application for condonation is granted.
The application for special leave to appeal is granted.
The application to adduce further evidence on appeal is dismissed.
The order of the Gauteng Division of the High Court, Pretoria, is set
aside and replaced by the following:
‘1
The appeal is dismissed.
The registrar of this Court is directed to forward a copy of this
judgment to the Head of the Department of Justice and the Head of
the Department of Correctional Services, Pretoria, for their
investigation as to why it took six years for an instruction to be given
to the appellant to report to the relevant authority in order to serve
his sentence.’

___________________
A SCHIPPERS
JUDGE OF APPEAL
Mocumie JA (Mabindla-Boqwana JA concurring)

[60] I have read both judgments of my colleagues Carelse and Schippers
JJA. There are a few aspects which need clarification if not amplification.
In para 36 of Schippers JA’s judgment he notes that: ‘[w]hat all of this
shows is that the applicant and his attorneys are solely responsible for any
delay after the granting of the order by Neukircher AJ on 27 September
2016 and August 2021 – almost five years.’ This is factually incorrect. As

the record reflects, there was a long delay in trying to acquire the judgment
of the full bench - those facts are in the file. That is why, before this Court,
the State accepted that the applicant filed an application for rescission
against the full bench’s judgment and order some 16 days later, instead of
15 days. Thus, in truth, as the State correctly accepted, the applicant was
late by one day.

[61] Under para 42 Schippers JA notes furthermore that ‘[c]oncerning the
delay by the Department in calling upon the applicant to serve his sentence,
in my opinion Malgas v S, decided by this Court, provides a complete
answer…’ This judgment although correct in principle is not the answer to
the issue before this Court but an answer to the general principle on
sentencing. In Malgas as Schippers JA correctly summarises, it is clear that
those facts were based on a totally different offence but serious on its own
ie breaking into a police station. On those facts, a concession was made by
the defence that the accused adopted a supine attitude to prosecute the
appeal. The accused was a police officer.  There was no application to
adduce further evidence. The only submission made in respect of a lighter
sentence in Malgas was the long delay. On the other hand, in the present
matter, there were substantial facts. The fact that for the past fifteen years
the applicant committed no other offence, is pivotal. That he was a young
university student who caused an accident by his negligent driving is also
a factor to be considered.

[62] In para 47 Schippers JA makes reference to S v Mthembu. The facts
between that case and the present one are also not the same. As he correctly
notes, the offences committed in Mthembu were armed robbery and illegal
possession of firearms. There, the applicant was convicted and out on bail
pending appeal; he was under an obligation to ascertain the outcome of the

appeal. The facts before this Court are different. The applicant presented
himself to the correctional centre immediately after the order of the full
bench. In that sense, he complied with the court order. The State, namely
the National Prosecuting Authority and Correctional Services, have
provided no explanation for this ‘blunder’. A blunder by government
officials without any attempt to investigate such and to then accuse the
applicant of deliberately trying to avoid prison is clearly unfair.

[63] In para 48 Schippers JA states that ‘[i]t is this apathetic and supine
attitude by the applicant that distinguishes his case from Jaftha. There, the
applicant’s explanation for a ten-year period of delay between conviction
and sentence and the lodging of his appeal, was that he had moved from
his place of residence and had not heard from his attorney after the appeal
had been lodged. He assumed that the appeal had succeeded and that he
was a free man.’ As it is clear from the facts before this Court, the applicant
did not move houses. He stayed in the same house with the same address
he had provided to the officials at the correctional centre. That must count
in his favour. It cannot be described, with the wisdom of hindsight as
exhibiting a ‘supine attitude.’ The worst description can be that he trusted
that government officials will do as they undertook to do.

[64] In para 51 Schippers JA comes to the conclusion that ‘the applicant
has simply not made out a case of exceptional circumstances for the
admission of the further evidence on appeal. It is not in the interests of
justice that it be admitted’. However, immediately thereafter the very
evidence that is found wanting is considered. In my view, the approach is
erroneous. Once the conclusion is reached that the evidence does not
amount to exceptional circumstances, as a matter of principle that should

be the end of the enquiry. The application for leave to appeal should and
ought to be dismissed on that basis.

[65] There is no doubt that there is a need to reflect on the concerns of
the community about the rate of fatal collisions on the roads, including
undue leniency in punishing drivers who are negligent or reckless in
whatever sentence a court deems appropriate, particularly in aggravating
circumstances. In S v Nyathi35 this Court emphasised that, before a court
can find an accused has been guilty of such a high degree of negligence as
to merit imprisonment, it must first carefully assess the evidence and arrive
at an accurate conclusion as to what occurred. Coopers Motor Law:
Hoctor, Juta36 states that, for an accused to be under the influence of
intoxicating liquor at the time of the collision is regarded by the courts as
an aggravating circumstance. However, there must be proof of impairment
before intoxication is regarded as a factor causing death. On the facts
before us, there was no such evidence.

[66] On the gravity of the problem of death arising out of serious
misconduct on the roads, this Court, in Nyathi after careful discussion of
the case law, provided a useful indication of the pertinent sentencing
factors which apply to the situation before us and similar cases. It held that
although a court imposing sentence in cases of culpable homicide must
emphasise the sanctity of human life, it must remember that the magnitude
of the tragedy resulting from negligence should never be allowed to
obscure the true nature of the accused’s crime or culpability.

35 S v Nyathi 2005 (2) SACR 273 (SCA) paras 14-22.
36 Coopers Motor Law: Hoctor, Juta at C1-12.

[67] The sentence of correctional supervision in terms of s 276(1)(h) of
the CPA is the most appropriate in the prevailing circumstances. As
Carelse JA holds, to imprison the applicant at this stage even for a sixth of
the three years’ imprisonment which Schippers JA proposes will not (after
this long delay) be in the interest of justice, given the peculiar
circumstances of this case. This is so because, despite the probation officer,
Ms Naidoo’s reservations about the applicant’s rehabilitation chances and
the applicant’s refusal to accept his guilt at pre-trial proceedings, she states
in her report referred to by Schippers JA, that ‘direct imprisonment is
viewed as too punitive and it will be as overemphasizing the needs of
society and the nature of the offence at the expense of the accused’s
personal circumstances.’

[68] She said ‘restorative justice framework encompasses all the
elements of correctional supervision: rehabilitation, prevention, retribution
and deterrence.’ She accepted that the applicant was sorry for what he had
done. This is contrary to her final view that he showed no remorse and was
(without any substantiation) manipulative. She also accepted that he was a
first offender, at a tertiary institution, about to complete his degree and as
a young person at that stage, correctional supervision may serve the desired
effect as it is punitive. This, notwithstanding Ms Naidoo’s perception that
the applicant did not accept responsibility for his actions, and that the
parents of the deceased wanted him to go to prison for what he had done.
Her report is contradicted by the gesture shown by the applicant when he
wrote letters to the families of the deceased that Carelse JA referred to in
her judgment. It must also be remembered that the report was compiled
prior to sentencing by the trial court some 13 years ago and does not
contain the prevailing circumstances that necessitated the special

application for leave to appeal. The value given to it must be seen in that
context.

[69] In conclusion, the Constitutional Court re-affirmed the suitability of
correctional supervision as an appropriate sentencing option in S v M37 as
follows:
‘Correctional supervision is a multifaceted approach to sentencing comprising elements
of rehabilitation, reparation and restorative justice. The South African Law
Commission (SALC) has underlined the importance of correctional supervision,
observing:
“There is increasing recognition that community sentences, of which reparation and
service to others are prominent components, form part of an African tradition
[(‘Ubuntu’)] and can be invoked in a unique modern form to deal with many crimes
that are currently sanctioned by expensive and unproductive terms of imprisonment.”’
(Footnotes omitted.)
This unique modern form is encompassed in restorative justice which is
premised on correctional supervision.

[70] For these additional reasons, I would agree with the order proposed
by Carelse JA.

___________________
BC MOCUMIE
JUDGE OF APPEAL

37 S v M [2007] ZACC 18; 2008 (3) SA 232 (CC) para 59.

APPEARANCES

For applicant:
J Engelbrecht SC

Fakude Ehlers Inc., Pretoria

Symington de Kok Attorneys,
Bloemfontein

For respondent:
A Coetzee

The Director of Public Prosecutions, Pretoria

The Director of Public Prosecutions,
Bloemfontein

THE SUPREME COURT OF APPEAL OF SOUTH AFRICA
MEDIA SUMMARY OF JUDGMENT DELIVERED IN THE SUPREME COURT OF APPEAL
From:
The Registrar, Supreme Court of Appeal
Date:
23 February 2022
Status:
Immediate
The following summary is for the benefit of the media in the reporting of this case and
does not form part of the judgments of the Supreme Court of Appeal
Rapholo Edwin Manyaka v The State (434/2020) [2022] ZASCA 21 (23 February 2022)
Today the Supreme Court of Appeal (SCA) upheld the appeal by the applicant and set aside the order
of the Gauteng Division of the High Court, Pretoria (high court) and referred the matter back to the
Pretoria Magistrate’s Court (magistrate’s court) to impose sentence afresh and consider the imposition
of correctional supervision in terms of s 276(1)(h) of the Criminal Procedure Act 51 of 1977 (CPA).

The applicant was involved in a motor vehicle collision which resulted in the death of two persons,
following from this, the magistrate’s court sentenced the applicant to a period of imprisonment. On
appeal to the high court, the magistrate’s court’s sentence was replaced with a period of imprisonment
of four years, one year of which was suspended for five years. However, upon reporting to prison to
serve his sentence, the applicant was informed that his imprisonment could not commence as the prison
authorities were not in possession of his documentation. The prison officials informed the applicant that
they would collect him from his home to serve his sentence when all administrative affairs were in order.
Six and a half years later a warrant of arrest was issued which culminated in an urgent application to
reconsider the sentence. The issue before the SCA was centred on the application for reconsideration
of the sentence.

The SCA determined that the applicant was not the cause for the inordinate delay in serving out the
sentence. Direct imprisonment was indeed appropriate, but due to the prevailing special circumstances,
incarceration should rather be replaced with a sentence of correctional supervision in terms of s
276(1)(h) of the CPA, as this would have been in the interests of justice. Accordingly, the SCA upheld
the appeal and set the order of the high court aside. The SCA referred the matter back to the
magistrate’s court to consider sentence afresh and to contemplate whether correctional supervision
was a suitable sentence in the circumstances.

In a separate dissent, the SCA would have dismissed the appeal as the special circumstances at hand
did not exist at the time of sentencing and should not have been taken into consideration in this present
appeal. In addition, a copy of this judgment ought to be sent to the Department of Correctional
Supervision to investigate why it took six years to order the applicant to report to the relevant authority
to serve his sentence.

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