SUPREME COURT OF APPEAL OF SOUTH AFRICA
JUDGMENT

Not Reportable

Case No: 20393/2014

In the appeal between:

MANDLA SITHOLE

First Appellant

and

THE STATE

Respondent

Neutral citation:   Mandla Sithole v The State (20393/2014) [2015]
ZASCA 106 (19 August 2015).

Coram:
Mhlantla, Tshiqi and Dambuza JJA
Heard:
19 August 2015
Delivered: 19 August 2015
Summary: Criminal Procedure – appeal against refusal to grant leave to
appeal on petition – whether leave to the high court ought to have been
granted.

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ORDER

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On appeal from: Gauteng Division of the High Court, Pretoria (Mavudla
J and Mabena AJ sitting as court of appeal):
1 The appeal is upheld.
2 The order of the high court is set aside and replaced with the following:
‘The applicant is granted leave to appeal to the Gauteng Division of the
High Court against his conviction of two counts of murder in the
Regional Court, Standerton, Mpumalanga.
3 The matter is remitted to the court a quo to entertain the merits of the
appeal.

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JUDGMENT

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Mhlantla JA (Tshiqi and Dambuza JJA concurring):

[1] This is an appeal against the refusal by the Gauteng Division of the
High Court, Pretoria of the appellant’s application for leave to appeal to
that court against his conviction of two counts murder in the Regional
Court, Standerton, Mpumalanga (refusal of his petition). The appeal is
with leave of the court a quo.

[2] The conviction on the two counts of murder arose out of a traffic
incident which occurred on 4 April 2009 at Charl Cilliers and which
resulted in the death of Ms Jeaneth Nontlantla Ngema and Mr Vusimuzi
Petrus Ngema (the driver of one of the motor vehicles involved in the

collision). The appellant was the driver of the other motor vehicle
involved in the collision.

[3] Both the State and the appellant adduced evidence. At the end of
the trial, the appellant was convicted on both counts of murder. He was
sentenced to eight years’ imprisonment on each of the counts. The court
ordered the sentences to run concurrently.

[4] On 18 April 2012, the appellant applied for leave to appeal against
conviction and sentence. His application was partially successful in that
the Regional Magistrate granted leave against sentence only.  Aggrieved
by the outcome of his application, the appellant lodged his petition in the
high  court on 3 November 2012 and applied for leave to appeal to this
court against the refusal of his petition in respect of the convictions. On
19 July 2013, the high court granted the appellant leave to appeal against
the refusal of his petition. This court therefore has jurisdiction to entertain
the appeal since leave to appeal was granted before the Superior Courts
Act 10 of 2013 came into operation.1

[5] The issue before this court is whether the high court ought to have
granted leave to appeal against the convictions.

[6] Before us, counsel for the State correctly conceded that the
appellant has reasonable prospects of success on appeal against his
conviction on the two murder charges. I agree with the submission that
the appeal on the merits is arguable. In the result the order by the high
court cannot stand and has to be set aside. The appeal must therefore

1 S v Khoasasa 2003 (1) SACR 123 (SCA) at paras 14 and 19 – 22; S v Tonkin 2014 (1) SACR 583
(SCA).

succeed.

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

1 The appeal is upheld.
2 The order of the high court is set aside and replaced with the following:
‘The applicant is granted leave to appeal to the Gauteng Division of the
High Court against his conviction of two counts of murder in the
Regional Court, Standerton, Mpumalanga.
3 The matter is remitted to the court a quo to entertain the merits of the
appeal.

__________________
NZ MHLANTLA

JUDGE OF APPEAL

APPEARANCES:

For Appellant:
P Pistorious
Instructed by:
Van Zyl Le Roux Inc

Pretoria

c/o Honey Attorneys

Bloemfontein

For Respondent:
P Voster
Instructed by:
Director of Public Prosecutions
High Court

Pretoria