THE SUPREME COURT OF APPEAL OF SOUTH AFRICA
JUDGMENT

Reportable
Case No: 015/2012

In the matter between:

SINETHEMBA NTLANYENI

APPELLANT

and

THE STATE

RESPONDENT

Neutral citation:
Ntlanyeni v The State (015/2016) [2016] ZASCA 3 (25
February 2016)

Coram:

Tshiqi, Wallis, Dambuza JJA and Plasket and Tsoka AJJA

Heard:

15 February 2016

Delivered:

25 February 2016

Summary: Reconsideration of an application for leave of appeal under s 17(2)(f) of
the Superior Courts Act 10 of 2013 – lodging an application for reconsideration
outside stipulated one month period – there is no time limit where the President of
the Supreme Court of Appeal refers an order for reconsideration mero motu.

___________________________________________________________________

ORDER
___________________________________________________________________

On appeal from:  Eastern Cape High Court, Port Elizabeth (Bloem AJ sitting as a
court of first instance).

Leave is granted to the applicant to appeal to the full bench of the Eastern Cape
High Court, Grahamstown against his conviction.
___________________________________________________________________
JUDGMENT
___________________________________________________________________

Dambuza JA (Tshiqi, Wallis JJA and Plasket and Tsoka AJJA concurring):

[1] This is an application for reconsideration of an application for leave to appeal
brought in terms of s 17(2)(f) of the Superior Courts Act 10 of 2013 (the Act).

[2] The applicant and his two co-accused were charged before the Eastern Cape
High Court, Port Elizabeth (Bloem AJ), with assault with intent to do grievous bodily
harm, kidnapping and two counts of rape. He was the third accused in the trial court
and was convicted together with the second accused (Mr Nkompo), only on the
charges of kidnapping and the two counts of rape. They were both sentenced to an
effective term of 22 years’ imprisonment. The first accused (Mr Poni) was convicted
on all the charges. Leave to appeal against the convictions and sentences was
refused by the trial court to all three accused. Thereafter each accused brought a
separate application before this court for leave to appeal. The first accused’s
application was considered by Cachalia and Leach JJA. On 7 June 2012 the learned
judges granted that accused leave to appeal against the convictions. On 22
November 2012 Lewis JA and Southwood AJA, granted the second accused leave
to appeal against his convictions.

[3] Earlier, on 11 January 2012 the applicant, Mr Sinethemba Ntlanyeni, had
brought an application for leave to appeal. That application was dismissed by this

court (Ponnan et Saldulker JJA) on 1 September 2014. However, during 2012, the
applicant had been advised that leave to appeal had been granted to the full bench
of the Eastern Cape High Court, Grahamstown. It was only when his ‘appeal’ was
pending in that court that he learned that the earlier advice given to him during 2012
had been erroneous. On 15 July 2015, within seven days of being advised of the
misfortune relating to his application for leave to appeal, he brought an application in
terms of s 17(2)(f) of the Act for the President of this court to refer the decision of 1
September 2014 to this court for reconsideration. By the time the applicant launched
the application for reconsideration it was almost ten months after dismissal of his
application for leave to appeal.

[4] The reason for the delay in considering the applicant’s original application for
leave to appeal was that the order by Cachalia and Leach JJA in respect of the first
accused’s leave to appeal had erroneously been understood, presumably by the
Registrar, to be applicable to the applicant as well. Hence the applicant was advised
that his appeal would be heard by the full bench of the Eastern Cape High Court,
Grahamstown on 28 January 2014.

[5] Whilst Mpati P was of the firm view that the application merits reconsideration
he expressed a concern about the fact  that it was filed outside the period stipulated
in s 17(2)(f). However, the concern need not detain us. Section 17(2)(f) of the Act
provides that:
‘The decision by the majority of the judges considering leave to appeal in terms of s 17(2)(b)
or the decision to grant or refuse an application for leave shall be final: Provided that the
President of the Supreme Court of Appeal shall, in exceptional circumstances, whether of his
or her own accord or on application filed within one month of the decision, refer the decision
to the court for reconsideration or, if necessary, variation.’ (My emphasis.)

[6] This provision empowers the President of this court, ‘of his or her own
accord,’ to refer a decision for reconsideration. The President’s mero motu authority
under s 17(2)(f) is not time-bound. This much the respondent correctly conceded.
What is paramount is that the circumstances leading to the application must be

exceptional.1 In the ordinary course of events the President will only become aware
of the circumstances in an application for leave to appeal when his or her attention is
drawn thereto. In this case the unfortunate circumstances in the applicant’s
application did not come to the attention of the President so that he could determine
whether he should exercise his powers under s 17(2)(f) of the Act mero motu, until
he received the applicant’s application. But I am satisfied that had his attention been
drawn thereto, other than through this application, he would have done so. It is
apparent from the reasons given by the President of this court that he was satisfied
that the refusal of leave to appeal to the applicant alone within the context of the
merits of this case and the mishandling of the applicant’s application for leave to
appeal constituted exceptional circumstances. The fact that the applicant brought his
application ten months after refusal of leave seems to me, in the circumstances of
this case, irrelevant.

[7] As to the merits of the application, I am of the view that there is a good case
for a finding that another court might come to a different conclusion than that of the
trial court. Although the evidence supports the complainant’s allegations that she
was attacked on the night in question, her evidence that she was raped and her
identification of the applicant as one of the culprits, merits reconsideration. The fact
that the applicant’s co-accused were granted leave to appeal strengthens this view.

[8] Consequently, leave is granted to the applicant to appeal to the full bench of
the Eastern Cape High Court, Grahamstown against his conviction.

_____________________
N DAMBUZA
JUDGE OF APPEAL

1 What is exceptional will be determined on the merits of each case. See, for example R v Maihlome
1913 AD 133; R v Kgolane & others 1959 (4) SA 483 (A).

APPEARANCES:

For the Appellant:

J Van der Spuy
Instructed by:

Port Elizabeth Justice Centre, Port Elizabeth

Bloemfontein Justice Centre, Bloemfontein

For the Respondent:

M M Sandan
Instructed by:

Director of Public Prosecutions, Grahamstown

Director of Public Prosecutions, Bloemfontein