THE SUPREME COURT OF APPEAL OF SOUTH AFRICA

JUDGMENT

Case No: 487/2016

In the matter between:

James Sello Mathekola                                                                               Appellant

and

The State                                                                                                  Respondent

Neutral citation:  Mathekola v State (487/2016) [2016] ZASCA 106  (14 July
2016)

Delivered:

14 July 2016

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ORDER
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1 Condonation for the late filing of the application is granted.
2 The decision of this court dated 26 October 2015 dismissing the applicant’s
application for special leave to appeal is referred to the court for reconsideration and,
if necessary, variation.
3 The applicant is directed to file with the Registrar of this court six (6) copies of his
application in terms of s 17(2)(f) of Act 10 of 2013, as well as six (6) copies of his
initial application to this court for special leave to appeal, within one month of the
date of this order and thereafter to comply with the rules of this court relating to the
conduct of appeals.

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JUDGMENT
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MPATI AP

[1] The applicant and two others faced a number of charges in the regional court
of the Regional Division of Pretoria. He was convicted on 12 March 2013 of,
amongst others, four (4) counts of robbery with aggravating circumstances and four
(4) counts of kidnapping. The kidnapping counts relate to the robbery, at gunpoint, of
four victims whose movements were allegedly restricted, in that they were prevented
from leaving the room in which they were, while the robbery was taking place. In
respect of the kidnapping counts the applicant was sentenced to five (5) years’
imprisonment on each count. The trial court ordered that the sentences on these
counts (counts 2, 4, 6 and 8) run concurrently. Together with the sentences imposed
in respect of the robbery counts, the total effective sentence was 20 years’

imprisonment. An application for leave to appeal was refused by the regional court.
Leave to appeal was also refused by the North Gauteng High Court, Pretoria.

[2] On 12 August 2015 this court (Theron and Dambuza JJA) granted leave to
one of the applicant’s erstwhile co-accused, Mr Peter Maphakela, to appeal to the
Full Court of the Gauteng Division of the High Court, Pretoria, against the convictions
and sentences on counts 2, 4, 6 and 8. However, on 26 October 2015 this court
(Maya DP and Mathopo JA) dismissed the applicant’s application for special leave to
appeal on the grounds that ‘there are no special circumstances meriting a further
appeal to this court’. The applicant has now applied to the President of the Supreme
Court of Appeal for a referral of the decision dismissing his application for special
leave to appeal to the court for reconsideration and, if necessary, variation, in terms
of s 17(2)(f) of the Superior Courts Act 10 of 2013. He has submitted in his founding
affidavit that counts 2, 4, 6 and 8, namely the kidnapping counts, ‘though standing
alone, constitute a single continuous criminal transaction which was carried out as a
single intent, viz robbery’. In essence, the applicant’s submission is that there had
been a duplication of charges.

[3] It does not appear from a reading of the judgment of the regional court that
the State’s case against the applicant was different from that presented against his
erstwhile co-accused, who was subsequently granted leave by this court. It seems to
me that a failure to refer the decision to dismiss the applicant’s application for special
leave to appeal against his convictions and sentences in respect of counts 2, 4, 6
and 8 to the court for reconsideration might result in grave injustice, particularly if the
appeal of his erstwhile co-accused were to succeed. I am satisfied that the applicant
has shown that exceptional circumstances exist for the decision of this court
dismissing his application for special leave to appeal to be referred to it for
reconsideration.

[4] In the result, the following order is made:

1 Condonation for the late filing of the application is granted.
2 The decision of this court dated 26 October 2015 dismissing the applicant’s
application for special leave to appeal is referred to the court for reconsideration and,
if necessary, variation.
3 The applicant is directed to file with the Registrar of this court six (6) copies of his
application in terms of s 17(2)(f) of Act 10 of 2013, as well as six (6) copies of his
initial application to this court for special leave to appeal, within one month of the
date of this order and thereafter to comply with the rules of this court relating to the
conduct of appeals.

_______________________________
L Mpati
Acting President