Malherbe v The State

The appellant, Dawid Johannes Malherbe, was a managing director at Eskom who was seconded to act as managing director of PN Energy Services (Pty) Ltd (PNES), a company ultimately wholly owned by Eskom. While serving on the PNES board, Malherbe proposed that contracts for core and non-core services during the integration of PNES into Eskom be awarded to Energy Utility Services (Pty) Ltd (EUS), a company of which he was the sole shareholder and director at the time. He disclosed his interest and recused himself from the board decision. The contracts were awarded to EUS and generated profits of approximately R10.2 million. Malherbe was later charged and convicted in the regional court of one count of fraud (based on alleged misrepresentation regarding EUS’s BEE status causing Eskom prejudice) and one count of money laundering, and sentenced to an effective 15 years’ imprisonment. His applications for leave to appeal to the High Court and on petition were refused, leading to an appeal to the Supreme Court of Appeal against the refusal of leave to appeal.

The appeal was upheld. The High Court’s order refusing the appellant’s petition for leave to appeal was set aside and replaced with an order granting the appellant leave to appeal against his convictions and sentence to the Western Cape Division, Cape Town.

The case clarifies and reaffirms the test for granting leave to appeal in criminal matters, emphasising that courts must determine whether reasonable prospects of success exist rather than pre-judging the merits. It also illustrates the SCA’s supervisory role over refusals of leave to appeal and underscores the importance of assessing evidential contradictions and sentencing proportionality at the leave stage.