THE SUPREME COURT OF APPEAL OF SOUTH AFRICA
JUDGMENT

Case No:
741/11

Not Reportable

In the matter between:

SIBUSISO JOHANNES MKHIZE

Appellant

and

THE STATE

Respondent

Neutral citation: Mkhize  v The State (741/11) ZASCA 74 (25 May 2012)

Coram:
VAN HEERDEN, MAJIEDT JJA and PETSE AJA

Heard:
09 May 2012

Delivered:
25 May 2012

Summary:
Criminal Procedure – Appeal against a refusal by a high court to grant leave
to appeal on petition seeking leave to appeal against a sentence imposed by a regional
court – the issue is whether leave to appeal should have been granted by the high court
and not the merits of the appeal.

____________________________________________________________________________________
ORDER

On appeal from: North West High Court (Mafikeng) (Mpshe AJ sitting as court of
appeal):

1 The appeal is upheld.
2 The order of the court below refusing the appellant leave to appeal is set aside and
substituted with an order granting the appellant leave to appeal to the North West
High Court (Mafikeng) against the sentence imposed on him in the regional court.
_______________________________________________________________________
JUDGMENT
_____________________________________________________________________
PETSE AJA (VAN HEERDEN, MAJIEDT JJA concuring):

[1] The appellant, Mr Sibusiso Johannes Mkhize, was arrested and arraigned before a
regional magistrate in Mmabatho on a charge of theft of a motor vehicle. It was alleged
that, on 29 September 2007 at Mafikeng, the appellant unlawfully and intentionally stole a
navy-blue Opel Corsa, the property of or in the lawful possession of one Mr Kenneth
Lobelo.

[2] Despite his plea of not guilty, the appellant was found guilty as charged and then
sentenced to ten years’ imprisonment. Disenchanted with his sentence, he applied for
leave to appeal to the North West High Court in terms of s 309B of the Criminal Procedure
Act 51 of 1977 (the Act). The trial magistrate refused this application. Subsequently he
petitioned the North West High Court under s 309C of the Act but this petition suffered a
similar fate. His subsequent application for leave to appeal to this court against the refusal
of his petition under s 309C was successful (per Mpshe AJ).

[3] It is necessary to comment briefly on the terms of the order of the court below –
incorporated in a judgment by Mpshe AJ dated 12 August 2011 – granting leave to appeal
to this court. It reads as follows:

‘I therefore order that the application for leave to appeal for special leave to the Supreme Court of
Appeal is granted.’
This order, on its terms, is obviously not elegantly crafted. This shortcoming is further
compounded by the terms of the order issued by the Registrar of the North West High
Court on 12 August 2011. It reads as follows:
‘The application for leave to appeal to the Supreme Court of Appeal against sentence be and is
hereby granted.’

[4] Because of the potential confusion if the orders mentioned in the preceding
paragraph are taken at face value, I propose dealing first with the current state of the law
concerning the ambit of this appeal. This is all the more important given that counsel in
their heads of argument also addressed at length the merits of the appellant’s ‘appeal
against sentence’.1

[5] In S v Khoasasa 2003 (1) SACR 123 (SCA) this court concluded, after a
comprehensive analysis of the provisions of the Act relating to appeals, that an order of the
high court refusing leave to appeal (be it against conviction or sentence or both) was an
order of a provincial division against which an appellant, either with leave from the high
court itself or, failing which, with leave of this court, could appeal. It went on to hold that a
sentence imposed in the regional court – which is what occurred in this appeal – can only
be appealed against in this court after an appeal against such sentence has failed in the
high court.

[6] This court subsequently described the reasoning in Khoasasa as unassailable.2
Another pertinent decision is the unreported judgment of this court in Smith v The State
[2011] ZASCA 15 (15 March 2011) in which the same question had arisen.

1 I have put the words ‘appeal against sentence’ in parenthesis for reasons that will become apparent
once I have considered this very point.
2 Matshona v S [2008] 4 All SA 68 (SCA) para 4.

[7] In the light of the aforegoing it should be emphasised that what was before Mpshe
AJ on 12 August 2011 was an application by the appellant in terms of which he sought
leave to appeal against the refusal (per Kgoele J and Mpshe AJ) of his application for
leave to appeal, to the North West High Court, against the sentence imposed on him in the
regional court, Mmabatho. This appeal is consequently not before us on the merits. What
we are called upon to decide at this stage is the question whether the court below was
correct in refusing leave to appeal when it considered the appellant’s petition under
s 309C of the Act.

[8] In order to answer that question we should in turn ask ourselves whether or not
there is a reasonable prospect of success in the envisaged appeal to the high court
against the sentence imposed on the appellant in the regional court.3

[9] It is to that question that I now turn. Before us, various grounds were relied upon by
Mr Skibi, counsel for the appellant, in pursuit of the appellant’s quest for leave to appeal
against his sentence. I do not propose to mention all of them.  Suffice to say that it was,
inter alia, contended that the trial magistrate committed several misdirections and in
particular (a) failed to have proper regard to appellant’s personal circumstances and only
did so, albeit in a perfunctory fashion, when dealing with the appellant’s application for
leave to appeal under s 309B of the Act; (b) found that the complainant had suffered
psychological trauma as a consequence of both the theft of and damage to his motor
vehicle, when there was not even a shred of evidence to sustain such a funding; (c) that,
taking cognisance of the previous decisions4 of this and other courts, the sentence
imposed on the appellant was severe to a degree demonstrating that the trial court
exercised its discretion unreasonably.5

3  R v Baloi 1949 (1) SA 523 (A) at 524; S v Sikosana 1980 (4) SA 559 (A) at 562D-563A; S v Mabena &
another 2007 (1) SACR 482 (SCA) para 22.
4 S v Gerber 2006 (1) SACR 618 (SCA) para 18; Mthembu v S 2008 (2) SACR 407 (SCA) para 38; S v
Naidoo 2010 (1) SACR 499 (GSJ); S v Nxopo 2012 (1) SACR 13 (ECG).
5 S v Giannoulis 1975 (4) SA 867 (A) at 868G-H; S v Kgosimore 1999 (2) SACR 238 (SCA) para 10.

[10] Bearing, inter alia, the above factors in mind, we are persuaded that there is a
reasonable prospect that a court of appeal might consider the sentence imposed to be
excessive. This was conceded by counsel for the State. This appeal must therefore
succeed.

[11] Before concluding there is one further aspect that requires mention. The appellant
was sentenced on 17 March 2010 which means that he has already been incarcerated for
over two years. Moreover the appellant was in custody for almost five months prior to his
release on reduced bail. Bearing this in mind, it is hoped that the Director of Public
Prosecutions, North West will consider placing the appeal on the roll for hearing at the
earliest opportunity.

[12] In the result the following order is made:

1 The appeal is upheld.
2 The order of the court below refusing the appellant leave to appeal is set aside and
substituted with an order granting the appellant leave to appeal to the North West
High Court (Mafikeng) against the sentence imposed on him in the regional court.

____________________

X M Petse

Acting Judge of Appeal

APPEARANCES

FOR APPELLANT:

N L Skibi

Instructed by Legal Aid

South Africa, Mafikeng

Legal Aid South Africa, Bloemfontein

FOR RESPONDENT:

M G N Ndimande

Instructed by the Director of Public Prosecutions,

Mafikeng

Director of Public Prosecutions, Bloemfontein