D Mohlatshe v The State

The appellant was convicted in the Regional Court on two counts of robbery involving the armed hijacking of female motorists of their BMW vehicles in Randburg. He was sentenced to 10 years’ imprisonment on each count, with partial concurrency resulting in an effective sentence of 12 years. He appealed against conviction and sentence, but his appeal to the Witwatersrand Local Division was struck from the roll because his heads of argument were filed 13 days late and condonation was refused. The appellant then appealed to the Supreme Court of Appeal against the refusal of condonation. On appeal, he sought to introduce further evidence explaining that the delay was caused by the negligence and misconduct of his advocate (K), despite diligent efforts by his family. The merits of the underlying convictions, particularly identification evidence and circumstantial evidence linking him to one of the robberies, were also considered in assessing prospects of success.

Further evidence was admitted. Condonation was not granted in respect of count 4 because there were no reasonable prospects of success on conviction or sentence. The appeal against the refusal of condonation therefore failed insofar as it related to count 4. (The Court’s reasoning indicated that the conviction on count 3 was vulnerable due to unreliable identification evidence.)

The case is significant for clarifying when appellate courts may admit further evidence explaining procedural defaults and relax strict compliance with condonation requirements, particularly where the fault lies with legal representatives rather than accused persons. It also reinforces principles governing the assessment of identification parade evidence and underscores the importance of properly constituted parades and objective safeguards such as photographs.