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THE SUPREME COURT OF APPEAL OF SOUTH AFRICA

JUDGMENT

Not reportable

Case no: 1173/2016

In the matter between:

NCEBA TYHULU                                                                                           Appellant

and

THE STATE

Respondent

Neutral citation:
Nceba Tyhulu v The State (1173) [2019] ZASCA 51 (1 April
2019)

Coram:
Cachalia, Mbha, Mocumie, Dlodlo JJA and Matojane AJA

Heard:
11 March 2019

Delivered:
1 April 2019

Summary: Criminal Procedure – Appeal against a refusal to grant leave to appeal
on petition – issue to be decided is whether the appellant has a reasonable prospect
of success on appeal and not the merits of the appeal.

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ORDER
___________________________________________________________________

On appeal from Western Cape High Court, Cape Town.

The appeal against the dismissal of the application for leave to appeal in
respect of counts 1 and 2 is dismissed
The appeal against the dismissal of the application for leave to appeal in
respect of count 3 and count 4 is upheld.
The appeal against dismissal of the appeal against the sentence imposed on
counts 3 and 4 as well as the effective sentence of 13 years’ imprisonment is upheld.
The order of the court below is replaced with the following order:
‘The application for leave to appeal against counts 1 and 2 is dismissed. The
appellant is granted leave to appeal to the Western Cape High Court, Cape Town,
against the conviction and sentence imposed upon him in respect of counts 3 and 4
as well as the effective sentence of 13 years’ imprisonment.’

___________________________________________________________________

JUDGMENT

Matojane AJA (Cachalia, Mbha and Mocumie JJA and Dlodlo AJA concurring):

[1] This is an application for special leave against dismissal by the high court of
the application for leave to appeal against the convictions and sentences imposed in
the magistrate’s court.

[2] The appellant, Mr Tyhulu was convicted in the Regional Court Paarl on two
counts of contravening the provisions of the Prevention and Combating Corrupt
Activities Act of 2004 (“POCCA”) and two counts of contravening the provisions of
section 5(a) of the Drugs and Drugs Trafficking Act 40 of 1992. He was sentenced

on 13 July 2015 to 10 years’ imprisonment on the first two counts taken together,
and three years’ direct imprisonment on the second two counts which were also
taken together for purposes of sentence.

[3] He applied to the trial magistrate for leave to appeal against both conviction
and sentence. Leave to appeal was refused. He then applied, by way of petition in
terms of s 309B of the Criminal Procedure Act 51 of 1977 to the Judge President of
the Western Cape High Court, Cape Town for leave to appeal against his conviction.
His petition was dismissed.

[4] The refusal of an application for leave to appeal on petition to two judges of
the High Court is appealable with special leave of this court. S v Khoasana1, Van
Wyk v The State; Galela v The State 2015 (1) SACR 584 (SCA). The appellant
petitioned this court and special leave to appeal was granted.

[5] The issue to be determined at this stage is whether the appeal should have
been granted by the High Court and not the appeal itself. As a result, the test to be
an applied is whether there is a reasonable prospect of success in the envisaged
appeal rather than whether the appeal ought to succeed.2 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.

[6] The appellant argues that there is a reasonable prospect of success on
appeal because the magistrate misdirected herself in, among other things, rejecting
his evidence that he was pressured and threatened by the undercover police agent,
that he has been offered a financial inducement to commit these offences.

[7] Having heard the argument on the merits and considered the judgment of the
magistrate I am of the view that there are no reasonable prospects of success that
another court may come to a different conclusion regarding the convictions on the
two counts of corruption. However, with regard to counts 3 and 4 it is doubtful

1 S v Khoasana 2003 (1) SACR 123 (SCA) paras 14 and 19-22.
2 S v Matshona [2008] ZASCA 58; [2008] 4 All SA 68 (SCA) para 4.

whether the state has proved beyond reasonable doubt that the appellant dealt in
drugs. There are therefore reasonable prospects that another court may conclude
that the appellant ought to have been convicted of possession of tik instead of
dealing in the substance. If the court comes to this conclusion, it may consider
interfering with the sentence imposed in respect of the said two counts and of the
effective sentence of 13 years’ imprisonment that was imposed on the four counts. In
the result, the appeal against the dismissal of the application for leave to appeal in
respect of counts 3 and 4 and the sentence imposed on these counts succeeds.

[8] The following order is issued:
1 The appeal against the dismissal of the application for leave to appeal in respect of
counts 1 and 2 is dismissed
2 The appeal against the dismissal of the application for leave to appeal in respect of
count 3 and count 4 is upheld.
3 The appeal against dismissal of the appeal against the sentence imposed on
counts 3 and 4 as well as the effective sentence of 13 years’ imprisonment is upheld.
4 The order of the court below is replaced with the following order:
‘The application for leave to appeal against counts 1 and 2 is dismissed. The
appellant is granted leave to appeal to the Western Cape High Court, Cape Town,
against the conviction and sentence imposed upon him in respect of counts 3 and 4
as well as the effective sentence of 13 years’ imprisonment.’

___________________
KE Matojane
Acting Judge of Appeal

Appearances:

For the Appellant:

M Calitz
Instructed by:

Legal Aid South Africa
Bloemfontein Justice Crentre

For the Respondent:

M V Orban
Instructed by:

Office of the Director of Public Prosecutions,

Western Cape