THE SUPREME COURT OF APPEAL OF SOUTH AFRICA
JUDGMENT

Not Reportable

Case No:  20770/14

In the matter between:

PHILANE SIHLE MCHUNU
Appellant

and

THE STATE
Respondent

Neutral citation:  Mchunu v The State (20770/14) [2015] ZASCA 115 (09
September 2015)

Coram:
Mpati P, Shongwe and Majiedt JJA

Heard:

09 September 2015

Delivered:

09 September 2015

Summary:      Criminal law – leave to appeal – sought on basis of duplication of
charges – refused by regional magistrate and high court – State conceding
existence of reasonable prospects of success – leave granted.

___________________________________________________________________
ORDER
___________________________________________________________________
On appeal from: Gauteng Division, Pretoria (Potterill J and Van Der Byl AJ, sitting
as a court of appeal):

1 The appeal is upheld.
2 Paragraph 2 of the order of the North Gauteng High Court issued on 4 June 2014
is set aside and replaced with the following:
‘2 The applicant is granted leave to appeal to the Gauteng Division of the High Court,
Pretoria, only against his conviction and sentence on count 18.’
___________________________________________________________________
JUDGMENT
___________________________________________________________________
Mpati P (Shongwe and Majiedt JJA concurring):

[1] The appellant was arraigned before the regional court, Piet Retief, together
with three other accused, where they stood trial on 18 counts arising out of a bank
robbery, which took place on 25 August 2003 at Amsterdam, Mpumalanga. He was
the second accused and was convicted on 15 September 2005 of robbery with
aggravating circumstances (count 1), three counts of attempted murder (counts 12,
13 and 14) and malicious injury to property (count 18). The regional court imposed
the following sentences:
(a) count 1: 15 years’ imprisonment;
(b) counts 12, 13 and 14 (taken as one for purposes of sentence): eight (8) years’
imprisonment; and
(c) count 18: four (4) years’ imprisonment.
It appears that on 16 November 2005 the regional magistrate dismissed the
appellant’s application for leave to appeal against the conviction and sentences
imposed. The appellant subsequently petitioned the Judge President of the North

Gauteng High Court, Pretoria, but his petition was dismissed by two judges of that
court on 4 June 2013. In a further petition to the President of this court he sought
leave to appeal against the refusal, by the two judges of the North Gauteng High
Court, of leave to appeal against his conviction on count 18 and the sentence of four
years’ imprisonment imposed in respect of that count. This court (per Brand JA and
Fourie AJA) granted the leave sought on 28 October 2014.

[2] In his heads of argument and in oral submissions before us counsel for the
State conceded that the appellant’s conviction on both counts one and 18 may well
have amounted to a duplication of charges. She therefore submitted that this court
should grant leave to the appellant to appeal against both the conviction and
sentence in respect of count 18. I agree. In my view, there is a reasonable prospect
that another court might find that the appellant should not have been convicted of
malicious injury to property. The appeal must therefore succeed.

[3] In the result, the following order shall issue:
1 The appeal is upheld.
2 Paragraph 2 of the order of the North Gauteng High Court issued on 4 June 2014
is set aside and replaced with the following:
‘2 The applicant is granted leave to appeal to the Gauteng Division of the High Court,
Pretoria, only against his conviction and sentence on count 18.’

________________________
L Mpati

President

APPEARANCES

For the Appellants:

A B Booysen

Instructed by:

Du Toit Attorneys, Pretoria

SMO Seobe Attorneys, Bloemfontein

For the Respondent

J P van der Westhuysen

Instructed by:
Director
of
Public
Prosecutions,
Pretoria
Director of Public Prosecutions,
Bloemfontein