THE SUPREME COURT OF APPEAL OF SOUTH AFRICA
JUDGMENT
SCA Case No: 73/2012
Not Reportable

In the matter between:

ZAKHELE THEKISO
APPELLANT

and

THE STATE

RESPONDENT

Neutral citation:
Thekiso v S (73/2012) [2012] ZASCA 129 (25 September
2012)

Coram:
Van Heerden and Shongwe JJA and Erasmus AJA

Heard:
12 September 2012

Delivered:
25 September 2012

Summary:
Criminal Procedure – leave to appeal – appeal against
refusal of petition – issue to be determined is whether leave to appeal
should have been granted by the High Court and not the appeal itself – the
test is whether appellant enjoys reasonable prospects of success in the
envisaged appeal, not the merits of the appeal.

ORDER

On appeal from: Northern Gauteng High Court, Pretoria (Du Plessis & Legodi
JJ sitting as court of appeal):

The following order is made:

(a)
The appeal is upheld.
(b)
The order refusing the appellant leave to appeal is set aside
and replaced with an order granting the appellant leave to
appeal to the North Gauteng High Court, Pretoria, against the
sentences imposed upon him in the regional court.

JUDGMENT
_______________________________________________________________
VAN HEERDEN JA (SHONGWE JA & ERASMUS AJA concurring):
[1] The appellant, Mr Zakhele Thekiso (accused 1 in the trial), was
convicted in the then Southern Transvaal Regional Court held at Daveyton of
five charges, namely murder, attempted murder, and three charges of
kidnapping. He was sentenced to 20 years’ imprisonment on the murder
charge, 10 years’ imprisonment on the attempted murder charge, and to 5
years’ imprisonment on each of the three kidnapping charges. As none of the
sentences was ordered to run concurrently with any other sentence, his
effective sentence was 45 years’ imprisonment.
[2] The appellant’s application to the Regional Court for leave to appeal
against both conviction and sentence was refused. He then directed a petition
for leave to appeal against both conviction and sentence to the North Gauteng
High Court. This was dismissed by Du Plessis and Legodi JJ. Thereafter, the
appellant directed a further petition to this court, which petition was referred to
the Registrar of the North Gauteng High Court. In accordance with S v

Khoasasa 2003 (1) SA 123 (SCA), the High Court dealt with this as an
application for leave to appeal against its refusal of the first petition.
[3] Du Plessis and Van den Heever JJ, who heard this application for leave
to appeal, concluded that, as regards the convictions, the application had no
merit. Leave was accordingly refused. At the same time, however, the High
Court granted leave to the appellant to appeal to this court against the High
Court’s refusal of his petition for leave to appeal against sentence. This latter
refusal is the issue in the appeal that currently serves before us.
[4] It is clear from recent case law emanating from this court1 that the ambit
of the appeal before us is limited. We cannot determine the merits of the
appeal, but are confined to the question whether leave to appeal to the High
Court against sentence should have been granted, in other words, whether
there is a reasonable prospect of success in the envisaged appeal against
sentence, rather than whether the appeal against the sentence ought to
succeed or not.
[5] According to the appellant, the trial court erred in not taking into account
the cumulative effect of the sentences imposed upon him, resulting in an
effective sentence that is manifestly inappropriate. Furthermore, he contended,
his sentence was disproportionately heavy when compared with the sentences
imposed on his six co-accused.2 This was conceded by counsel for the State.
[6] A sentence of 45 years’ imprisonment is undoubtedly very severe.
Bearing this in mind, and given the concession by counsel for the State, there

1 See in this regard Matshona v S [2008] 4 All SA 68 (SCA) paras 3-8, Kriel v S 2012 (1) SACR
1 (SCA) para 11, AD v S (334/2011) [2011] ZASCA 215 (29 November 2011) paras 3-8.

2 In imposing sentence in respect of the other six accused (who were all convicted on the same
five charges as the appellant), the regional magistrate had ordered that some of the sentences
would run currently with the other sentences imposed, thus resulting in considerably lighter
sentences.

exists in my view a reasonable prospect that a court of appeal might consider
the sentence imposed to be too severe. This appeal must therefore succeed.
[7] In the circumstances, the following order is issued:
(a)
The appeal is upheld.
(b)
The order refusing the appellant leave to appeal is set aside
and replaced with an order granting the appellant leave to
appeal to the North Gauteng High Court, Pretoria, against the
sentences imposed upon him in the regional court.

B J VAN HEERDEN
JUDGE OF APPEAL

APPEARANCES:
APPELLANT:
L AUGUSTYN
Instructed by Pretoria Justice Centre, Pretoria
Bloemfontein Justice Centre, Bloemfontein

RESPONDENT:
S R SIBARA

Instructed by Director of Public Prosecutions,
Pretoria

Director of Public Prosecutions, Bloemfontein