THE SUPREME COURT OF APPEAL OF SOUTH AFRICA
JUDGMENT

Case No: 928/20
Not Reportable
In the matter between:

ZAKHELE DERRICK MBATHA

Applicant
and

THE STATE

Respondent

Neutral citation: Mbatha v The State (928/2018) [2020] ZASCA 102 (15 September
2020)

Coram:
MAYA P, DAMBUZA, NICHOLLS JJA AND WEINER AND MABINDLA-
BOQWANA AJJA

Heard:
This matter was decided without an oral hearing in terms of s 19(a) of
the Superior Courts Act 10 of 2013.

Delivered:
This judgment was handed down electronically by circulation to the
parties' representatives by email, publication on the Supreme Court of Appeal website
and release to SAFLII. The date and time for hand-down is deemed to be 15
September at 10h00.

Summary: Reconsideration of application for special leave to appeal against
conviction and sentence – section 17(2)(f) of the Superior Courts Act 10 of 2013 –
exceptional circumstances.

ORDER
Application for reconsideration referred by Navsa AP in terms of s 17(2)(f) of
the Superior Courts Act 10 of 2013:
1.
Condonation for the late filing of the copies of the original application for leave to
appeal and copies of the application in terms s 17(2)(f) of the Act is granted.
2.
The application succeeds and the order dismissing the applicant’s petition for
leave to appeal is varied to read:
‘The applicant is granted leave to appeal to the Gauteng Division of the High
Court (Johannesburg) against conviction in respect of count 3 and the
sentences in respect of counts, 1, 2, 4 and 5.’

JUDGMENT
Weiner AJA (Maya P, Dambuza and Nicholls JJA and Mabindla-Boqwana AJA
concurring):
Introduction
[1] The applicant was charged in the Magistrate’s Court of the Regional Division
of Gauteng, Lenasia, Gauteng with the following: count 1 - robbery with aggravating
circumstances; count 2 - robbery with aggravating circumstances; count 3 -
possession of an unlicensed firearm; count 4 - assault with the intent to do grievous
bodily harm; and count 5 - attempted murder. He was acquitted on count 4 and
convicted on counts 1, 2, 3 and 5 on 30 January 2013.
[2] On 25 February 2013, the applicant was sentenced on Count 1 to 15 years
imprisonment; on Count 2 to 15 years imprisonment; on Count 3 to 15 years
imprisonment; and on Count 5 to 10 years imprisonment.
[3] The magistrate ordered that the sentence imposed for count 2 run
concurrently with the sentence imposed for count 1. In regard to count 3, it was
ordered that 10 years of the 15 year sentence run concurrently with the sentence
imposed for count 1. On count 5, the sentence was not to be served concurrently with
any of the other sentences. The effective sentence imposed on the applicant was
thus 30 years imprisonment.
[4] The applicant applied for leave to appeal against the sentence and the
conviction on count 3. The magistrate dismissed the application due to a lack of
prospects of success. The applicant then directed a petition to the Gauteng High
Court, Johannesburg. The petition was dismissed on 13 March 2014. The applicant,
in a further effort to secure leave to appeal, directed a petition to this Court for special
leave. The petition was considered by two judges of this Court. On 22 May 2018, they
dismissed the application on the ground that there were no exceptional
circumstances meriting a further appeal. The applicant thereafter applied to this Court
in terms of s 17(2)(f) of the Superior Courts Act (the Act) for reconsideration of this

Court’s decision of 22 May 2018.
[5] Condonation for the late filing of the copies of the original application for
leave to appeal and copies of the application in terms s 17(2)(f) of the Act was not
opposed by the State. The appellant set out facts which show good cause why
condonation should be granted.

[6] The State also did not oppose the application for reconsideration of this
Court’s refusal to grant leave to appeal. The State conceded that the conviction on
count 3, cannot stand. It also conceded that the principles governing the cumulative
effect of the sentences, taken together with the time spent awaiting trial, were
incorrectly applied.

[7] The parties agreed that this matter could be disposed of without an oral
hearing in terms of s 19(a) of the Act.
Factual background
[8] The applicant was convicted on the following facts:
(a)
He was part of a group of three attackers who robbed the first complainant,
Mrs Regina Siyabela, at gunpoint of R14 000 cash, at her home from which
she ran a tavern;
(b)
Two other complainants, Makro truck drivers, Mr Prince Jabulani Botsaki and
Mr Thabo Phiri, who were delivering liquor at the house, were also robbed of
their wallets and cellular phones;
(c)
The firearm referred to in charge 3 was in the hands of accused 3;
(d)
The applicant was the driver of the Toyota Tazz motor vehicle used by the
robbers, who fled the scene in the vehicle;
(e)
The police gave chase; a shootout followed between certain of the people in
the Toyota Tazz vehicle and the police. Several other firearms were used by
the robbers in the shootout;

(f)
Accused 2 was injured in the shootout and the robbers abandoned the
vehicle and fled on foot;
(g)
The applicant and his co-accused were arrested sometime after the incident;
(h)
The applicant was subsequently pointed out as one of the robbers at an
identity parade.
[9] The applicant submitted that no evidence was placed before the trial court
that he, at any stage, handled a firearm or had one in his possession. He contended
that, although it is evident that the firearms were used for the benefit of the whole
group, a mere intention on the part of the group to use the weapons for the benefit of
them all is insufficient for a conviction of unlawful possession of a firearm.

Section 17(2)(f) of the Superior Courts Act
[10] The issues which form the basis of this reconsideration are:
(a)
Whether the applicant was correctly convicted on count 3;
(b)
whether, in imposing the sentences that it did, the court a quo, failed to take
into account the time that he spent in custody awaiting trial; and
(c)
whether the sentences should not all run concurrently.
[11] Section 17(2)(f) of the Act confers a discretion on the President of the
Supreme Court of Appeal, in exceptional circumstances, to refer a decision of
that Court, refusing an application for leave to appeal, to the Court for reconsideration
and, if necessary, variation.
[12] On 25 February 2019, this court (Navsa AP) granted the following order in
terms of s 17(2)(f):
1.
Condonation as applied for is granted.
2.
The decision of the court dated 22 May 2018 dismissing the applicant’s
application for leave to appeal with costs is referred to the court for
reconsideration, and if necessary, variation.

3.
The argument for special leave to appeal and condonation is referred for oral
argument in terms of s 17(2)(d) of the Act.
4.
The parties must be prepared, if called upon to do so, to address the court
on the merits.
Exceptional circumstances
[13] The issue for reconsideration is whether the applicant should have been
granted leave to appeal his conviction on count 3, on the basis that the conviction
was clearly wrong, on a point of law. If so, exceptional circumstances would exist
which would warrant a reconsideration of the conviction (and the consequent
sentence imposed in respect of such conviction).

[14] In Liesching and Others v S,1  the Constitutional Court stated:
‘The courts have been reluctant to lay down a general definition, as each case is to be
considered on its own facts. It has been held that it is neither desirable nor possible to lay
down a precise rule or definition as to what would constitute exceptional circumstances. The
meaning and interpretation given by the courts to the phrase has been wide-ranging . . .
Ultimately, it is the function of the presiding officers to determine whether, on a case-by-case
basis, the circumstances can be found to be exceptional.’ (Footnotes omitted).

[15] The concept of exceptional circumstances, in terms of s17(2)(f), was dealt with
in Malele v S; Ngobeni v S,2 where it was stated that on a correct application of these
principles, on the facts of that case, another court might reach a different conclusion.3
It concluded that ‘a grave injustice may otherwise result’ if the decision dismissing the
applicants’ application for leave to appeal was not referred to the court for
reconsideration, and that a grave injustice ‘in itself constitutes exceptional
circumstances enabling [the Court], mero motu, to refer the decision . . . to the court
for reconsideration.’4

1 Liesching and Others v S [2018] ZACC 25; 2019 (4) SA 219 (CC) para 132. Although this was in a
minority judgment, these principles were not refuted in the majority judgment
2 Malele v S; Ngobeni and Others v S  [2016] ZASCA 115.
3 Ibid paras 8-9.
4 Ibid para 12; see also Gwababa v S  [2016] ZASCA 200 (SCA).

[16] In Manyike v S,5  this Court dealt with the concept as follows:
‘What constitutes exceptional circumstances depends on the facts of each case. …. Thring
J in MV Ais Mamas Seatrans Maritime v Owners, MV Ais Mamas & another 2002 (6) SA 150
(C) at 156H remarked that:
“1. What is ordinarily contemplated by the words ‘exceptional circumstances’ is something
out of the ordinary and of an unusual nature; something which is accepted in the sense that
the general rule does not apply to it; something uncommon, rare or different . . .
2. To be exceptional the circumstances concerned must arise out of, or be incidental to, the
particular case.
3. Whether or not exceptional circumstances exist is not a decision which depends upon the
exercise of a judicial discretion: their existence or otherwise is a matter of fact which the
Court must decide accordingly.
4. Depending on the context in which it is used, the word ‘exceptional’ has two shades of
meaning: the primary meaning is unusual or different; the secondary meaning is markedly
unusual or specially different.
5. Where, in a statute, it is directed that a fixed rule shall be departed from only under
exceptional circumstances, effect will, generally speaking, best be given to the intention of
the Legislature by applying a strict rather than a liberal meaning to the phrase, and by
carefully examining any circumstances relied on as allegedly being exceptional.”
In a nutshell the context is essential in the process of considering what constitutes
exceptional circumstances.’ (footnotes omitted)

[17] The reconsideration is not the consideration of the merits of the appeal. It is
the reconsideration of the decision of this Court refusing leave to appeal. This Court
is required to decide whether the magistrate, the judges of the Gauteng Division, and
the two judges of this Court should have found that reasonable prospects of success
existed to grant leave to appeal.6 For the purposes of this reconsideration, this Court
is not called upon to make a decision on the merits of the appeal. However, for the
purposes of assessing whether special circumstances exist, it is necessary to
traverse the merits in order to decide whether there are reasonable prospects of
success on appeal.
[18] The applicant was convicted on the basis of joint possession of the firearm.
The applicant submitted that the fact that he was aware that accused 3 possessed

5 Manyike v S  [2017] ZASCA 96  para 3.
6 Liesching (note 1 above); Notshokovu v S [2016] ZASCA 112; 2016 JDR 1647 (SCA).

the firearm for the purpose of committing the robbery does not lead to the inference
that he possessed the firearm jointly with his co-accused. He relied in this regard on
this Court’s decision in Kwanda v S,7 and the decision of the Constitutional Court in
Makhubela v S.8
[19] In S v Kwanda this court held:9
‘The fact, that the applicant conspired with his co-accused to commit robbery, and even
assuming that he was aware that some of his co-accused possessed firearms for the purpose
of committing the robbery, does not lead to the inference that he possessed such firearms
jointly with his co-accused. In S v Nkosi, Marais J said that such an inference is only justified
where “the state has established facts from which it can properly be inferred by a court that:
(a) the group had the intention (animus) to exercise possession of the guns through the actual
detentor and (b) the actual detentors had the intention to hold the guns on behalf of the
group”. Nugent JA, in S v Mbuli, referred to the above-quoted passage from Nkosi and
commented that Marais J had “set out the correct legal position”. In Mbuli the applicant and
his two co-accused were charged with and convicted of being in possession of a hand
grenade that had been found in their vehicle shortly after they had robbed a bank (this is the
only charge of relevance to this matter). Nugent JA found that the evidence did not establish
that the applicant and his co-accused had possessed the hand grenade jointly and that it was
possible that the hand grenade had been possessed by only one of them. Nugent JA
concluded with these words:
“I do not agree that the only reasonable inference from the evidence is that the accused
possessed the hand grenade jointly. It is equally possible that, like the pistols, the hand
grenade was possessed by only one of the accused. Mere knowledge by the others that he
was in possession of a hand grenade, and even acquiescence by them in its use for fulfilling
their common purpose to commit robbery, is not sufficient to make them joint possessors for
purposes of the Act. The evidence does not establish which of the accused was in possession
of the hand grenade and on that charge, in my view, they were entitled to be acquitted.”
Adopting the reasoning in Nkosi and Mbuli, and even if the applicant was aware that
Mahlenche was in possession of the firearm, such knowledge is not sufficient to establish
that he had the intention to jointly possess the firearm with Mahlenche. In this matter there
are no facts from which it can be inferred that the applicant had the necessary intention to
exercise possession of the firearm through Mahlenche or that the latter had the intention to
hold the firearm on behalf of the applicant.’

7 Kwanda v S [2011] ZASCA 50; 2013 (1) SACR 137 (SCA).
8 Makhubela v S, Matjeke v S [2017] ZACC 36; 2017 (2) SACR 665 (CC) para 55.
9 Kwanda v S (note 7 above) paras 5-6.

[20] The test for establishing liability for the joint possession of a firearm was
established in S v Nkosi,10  and has been confirmed by the Constitutional Court in
Makhubela v S where it was held:
‘In convicting the applicants for unlawful possession of firearms and ammunition on the basis
of the doctrine of common purpose, the trial court departed from settled jurisprudence. The
test for establishing liability for the possession of firearms and ammunition was established
in S v Nkosi:
“The issues which arise in deciding whether the group (and hence the applicant) possessed
the guns must be decided with reference to the answer to the question whether the State has
established facts from which it can properly be inferred by a Court that:
(a)   the group had the intention (animus) to exercise possession of the guns through the
actual detentor; and
(b)   the actual detentors had the intention to hold the guns on behalf of the group.
Only if both requirements are fulfilled can there be joint possession involving the group as a
whole and the detentors, or common purpose between the members of the group to possess
all the guns.”
…. In these judgments, the courts have found perpetrators guilty of a crime involving the use
of firearms on the basis of the doctrine of common purpose, but nevertheless found that the
perpetrators could not be found to be guilty of the unlawful possession of firearms on the
basis of this doctrine. The test takes into account the fact that the application of the doctrine
of common purpose differs in relation to “consequence crimes”, such as murder, and in
relation to “circumstance crimes”, such as possession….’11

[21] The magistrate, in finding the applicant guilty of possession of the firearm on
the basis of joint possession, held:
‘[A]lthough the evidence places the firearm referred to in this charge in the hands of accused
3 the well-known Supreme Court of Appeal decision of Nkosi, refers to the possibility of a
conviction in respect of more than one accused on the basis of joint possession if certain pre-
requisites are present.
The court can safely infer from the evidence that all three . . . accused knew of this firearm
and that it might be utilised upon confrontation. The evidence shows that more than one
firearm was fired during the incident. All three accused are therefore also convicted of count
three.’

10 S v Nkosi 1998 (1) SACR 284 (W).
11 Makhubela v S (note 8 above) paras 46-47.

[22] The applicant contended that none of the complainants or the police
witnesses testified that he was in possession of a firearm or that he fired at the police.
While the applicant was driving the Toyota Tazz vehicle, and trying to evade the
police, it seems unlikely that he would have been able to use a firearm at the same
time. The question then is whether the only inference to be drawn from the evidence,
is that those who used the firearms, to rob t h e  c o m p l a i n a n t s  a n d  t o  evade
the police, possessed them on behalf of all of three accused.
Sentence
[23] The applicant spent 3 years and 6 months in custody awaiting trial. In S v
Vilakazi,12 this court held:
‘While good reason might exist for denying bail to a person who is charged with a serious
crime, it seems to me that if he or she is not promptly brought to trial, it would be most unjust
if the period of imprisonment while awaiting trial is not brought to account in any custodial
sentence that is imposed.’
[24] In addition, the cumulative effect of the sentences, taking into account that
certain of the sentences were not to run concurrently, led to an effective sentence of
30 years.
Conclusion
[25] The prospects of success on appeal appear to favour the applicant, both in
relation to the conviction on Count 3 and the effective sentence handed down.
However, as was held in Avnit v First Rand Bank Ltd:13
‘Prospects of success alone do not constitute exceptional circumstances. The case must
truly raise a substantial point of law, or be of great public importance or demonstrate that
without leave a grave injustice might result. Such cases will be likely to be few and far
between because the judges who deal with the original application will readily identify cases
of the ilk. But the power under section 17(2)(f) is one that can be exercised even when
special leave has been refused, so “exceptional circumstances” must involve more than
satisfying the requirements for special leave to appeal. The power is likely to be exercised

12 S v Vilakazi 2009 (1) SACR 552 (SCA) para 60.
13 Avnit v First Rand Bank Ltd [2014] ZASCA 132 para 7.

only when the President believes that some matter of importance has possibly been
overlooked or a grave injustice will otherwise result.’ [emphasis added]
[26] In my view, this matter raises a substantial point of law in relation a conviction
based upon joint possession of a firearm. The sentences handed down by the
Magistrate also overlook certain important principles. As the State properly
conceded, a grave injustice might result if leave to appeal is not granted. Thus, the
test for exceptional circumstances has been met.
[27] Accordingly, the following order is granted:
1.
Condonation for the late filing of the copies of the original application for leave
to appeal and copies of the application in terms s 17(2)(f) of the Act is granted.
2.
The application succeeds and the order dismissing the applicant’s petition for
leave to appeal is varied to read:
‘The applicant is granted leave to appeal to the Gauteng Division of the High
Court (Johannesburg) against conviction in respect of count 3 and the
sentences in respect of counts, 1, 2, 4 and 5.’

_______________________

WEINER AJA

ACTING JUDGE OF APPEAL

APPEARANCES
For applicant: Bhengu & Rajagopal Attorneys, Cape Town

Instructed by: Blair Attorneys, Bloemfontein
For respondent: Director of Public Prosecutions, Johannesburg

Instructed by:     Director of Public Prosecutions, Bloemfontein