THE SUPREME COURT OF APPEAL OF SOUTH AFRICA
JUDGMENT

Not reportable
Case No: 1020/2020

In the matter between:

KEDUMETSE MACWILLIAM NGAKANTSI
APPELLANT

and

THE STATE

RESPONDENT

Neutral citation: Kedumetse M Ngakantsi v The State (1020/2020) [2020]
ZASCA 94 (19 August 2020)

Coram:
Ponnan and Schippers JJA and Ledwaba AJA

Heard:
19 August 2020

Delivered: This judgment was handed down electronically by circulation to the
parties’ representatives by email and publication on the Supreme Court of Appeal
website. The date and time of hand-down is deemed to be 10h00 on 19 August
2020.

Summary: Appeal to Supreme Court of Appeal against refusal by the high court
of a petition seeking leave to appeal against conviction and sentence by the
regional court – leave to appeal to the high court should have been granted –
merits of the appeal to be determined by the high court.

ORDER

On appeal from: North West Division of the High Court, Mahikeng (Djaje J and
Morwane AJ sitting as court of appeal):
The appeal is upheld.
The order of the high court refusing the appellant leave to appeal in terms
of s 309C of the Criminal Procedure Act 51 of 1977, is set aside and
replaced with the following order:
‘The appellant is granted leave to appeal to the full court of the North West
Division of the High Court against:
(a) his convictions in respect of the contraventions of s 72 of the Criminal
Procedure Act 51 of 1977 and the sentences imposed pursuant thereto;
and
(b) the sentence imposed on him in respect of his conviction of corruption
in terms of s 4 of the Prevention and Combating of Corrupt Activities
Act 12 of 2004.’

JUDGMENT

Schippers JA (Ponnan JA and Ledwaba AJA concurring):

[1] The issue in this appeal, with the special leave of this Court, is whether the
appellant’s petition for leave to appeal in terms of s 309C of the Criminal
Procedure Act 51 of 1977 (the CPA) ought to have been refused by the North
West Division of the High Court, Mahikeng (the high court). The parties have

agreed that the appeal may be disposed of without the hearing of oral argument,
in terms of s 19(1)(a) of the Superior Courts Act 10 of 2013.1

[2] The facts are largely common ground. The appellant, a constable in the
Stock Theft Unit (the Unit) of the South African Police Service (the SAPS) was
charged in the Vryburg Regional Court with one count of corruption under s 4(1)
of the Prevention and Combating of Corrupt Activities Act 12 of 2004 (the
Corrupt Activities Act). The State alleged that in January 2012 the appellant
corruptly sold a stray cow for R3 000 in cash for his own benefit. The court
convicted him of contravening s 4(1) of the Corrupt Activities Act. The appellant
was sentenced to five years’ imprisonment for this offence.

[3] In the course of the trial the appellant, who had been released on warning,
failed to appear in court on two occasions, namely 8 October 2015 and 18 April
2016. A week before he had to appear in court on 8 October 2015, the appellant
consulted Dr Mbabane, his family doctor, who referred him to Dr Tshabalala, a
psychiatrist. The latter admitted him to hospital where the appellant remained for
three weeks. Dr Tshabalala certified that he was unable to attend the court
proceedings from 5 October 2015 to 9 December 2015. Regarding his failure to
appear on 18 April 2016, the appellant said that his body had become weak and
he submitted a medical certificate by Dr Mbabane, stating that he was suffering
from psychosis and indisposed from 15 to 19 April 2016.

[4] At the enquiry into his failure to appear in court in terms of s 72(2) of the
CPA, the appellant adduced the evidence of Dr Ntawisi, a psychiatrist whom he
consulted on 16 May 2016. His diagnosis was that the appellant suffered from a

1 Section 19(a) provides: ‘The Supreme Court of Appeal or a Division exercising appeal jurisdiction may, in
addition to any power as may specifically be provided for in any law - dispose of an appeal without the hearing
of oral argument.

severe major depressive disorder that could cause a number of physical
conditions, and that he had suicidal tendencies. The appellant testified that he
became very anxious close to each court date when he was due to be sentenced.
His body became weak and he consulted a doctor. He denied that this was planned
and said that his body reacted in that way. The trial court concluded that the
appellant’s failure to appear was wilful, found him guilty on two counts of
contravening s 72(2) of the CPA and sentenced him to a fine of R200 000 on each
count.

[5] The appellant’s application for leave to appeal was dismissed by the
regional court. He then petitioned the high court in terms of s 309C of the CPA.
Djaje J and Morwane AJ, who considered the petition, dismissed it in chambers
on 13 February 2019. The appellant thereupon petitioned this Court for special
leave to appeal the dismissal of his petition by the high court. The order of the
two judges of this Court, who considered the appellant’s petition and referred it
to this Court, was limited to the convictions and sentences relating to the
contraventions of s 72 of the CPA, and the sentence imposed for the contravention
of s 4(1) of the Corrupt Activities Act.

[6] The judgment sought to be appealed against is a judgment of the regional
court. Since the petition for leave to appeal was refused by the high court, this
Court is not called upon to consider the substantive merits of the appeal, but
whether the high court should have granted leave to appeal.2 The test is whether
there are reasonable prospects of success in the envisaged appeal.3

2 S v Khoasasa 2003 (1) SACR 123 (SCA) paras 19-22; S v Tonkin [2013] ZASCA 179; 2014 (1) SACR 583
(SCA) para 3.
3 Tonkin fn 2 para 3; De Almeida v S [2019] ZASCA 84 para 5.

[7] Section 72(2) of the CPA provides, inter alia, that an accused released on
warning who fails to appear, shall be guilty of an offence and liable to the
punishment prescribed in subsection (4). In terms of s 72(4), if a court is satisfied
that an accused was duly warned to appear and has failed to do so, it may,
‘. . . in a summary manner enquire into his failure and, unless such accused or such person
satisfies the court that [there is a reasonable possibility that] his failure was not due to fault on
his part, sentence him to a fine not exceeding R300 or to imprisonment for a period not
exceeding three months.’
In S v Singo,4 the Constitutional Court said that the italicised words in the above
quotation should be read as if incorporated in s 72(4). This means that the accused
need merely satisfy the court that there is a reasonable possibility that his failure
to appear was not due to fault on his part.5

[8] The argument advanced in respect of the appellant’s conviction on these
charges is that on the evidence in its totality, and in particular the medical
evidence adduced, there is a reasonable prospect of a court on appeal arriving at
the conclusion that his failure to appear in court on the two occasions in question,
was not due to any fault on his part. As to the sentence imposed upon the appellant
by the regional court for his conviction on each of these two counts, the argument
is that the sentence appears, on the face of it, to have exceeded the maximum
amount prescribed by the section.

[9] Regarding the sentence for the contravention of s 4(1) of the Corrupt
Activities Act, the appellant’s counsel made the following submissions. The
charge, albeit serious, was a single count that did not involve a large amount. The
appellant was a first offender. He was not dismissed from the SAPS after
disciplinary proceedings were brought against him, and at the time of sentencing

4 2002 (2) SACR 160 (CC) para 44.
5 A Kruger Hiemstra’s Criminal Procedure (Service Issue 12) at 10-2.

was still employed at the Unit. There is a reasonable prospect that an appellate
court may alter the sentence imposed, or consider another form of sentence to
meet the legitimate expectation of society that corrupt officials be duly punished,
having regard to the particular circumstances of this case.

[10] There is accordingly much to be said for the argument that there are
reasonable prospects of success in the envisaged appeal.

[11] In the result, the following order is made:
The appeal is upheld.
The order of the high court refusing the appellant leave to appeal in terms
of s 309C of the Criminal Procedure Act 51 of 1977, is set aside and
replaced with the following order:
‘The appellant is granted leave to appeal to the full court of the North West
Division of the High Court against:
(a)
his convictions in respect of the contraventions of s 72 of the
Criminal Procedure Act 51 of 1977 and the sentences imposed
pursuant thereto; and
(b)
the sentence imposed on him in respect of his conviction of
corruption in terms of s 4 of the Prevention and Combating of
Corrupt Activities Act 12 of 2004.’

_______________________

A Schippers
Judge of Appeal

APPEARANCES

For appellant:
P J S Smit

Instructed by:

Herman Scholtz Attorneys, Mafikeng
Rossouws Attorneys, Bloemfontein

No appearance for respondent