Gwababa v The State

The applicant, Mr Loyiso Gwababa, was one of several police officers charged with murder arising from the death of a taxi driver, Mr Silvesta Jossefa Marcia, following a violent arrest on 26 February 2013. The deceased was handcuffed to a police bakkie and dragged behind it while officers drove away from a hostile crowd. He later died in police custody from extensive soft tissue injuries and hypoxia. The applicant was convicted of murder with common purpose and sentenced to 15 years’ imprisonment by the Gauteng Division of the High Court. His application for leave to appeal was refused, as was a subsequent application for special leave to appeal by two judges of the Supreme Court of Appeal. Other co-accused, however, were granted special leave to appeal or succeeded in applications under s 17(2)(f) of the Superior Courts Act 10 of 2013. The applicant then applied to the President of the SCA for reconsideration of the refusal of special leave to appeal, together with condonation for late filing.

Condonation for the late filing of the application was granted. The decision of the Supreme Court of Appeal dated 25 August 2016 dismissing the applicant’s application for special leave to appeal was referred to the court for reconsideration and, if necessary, variation in terms of s 17(2)(f) of the Superior Courts Act 10 of 2013. The applicant was directed to lodge the required copies of his applications and thereafter comply with the rules of the court.

The case clarifies the scope of s 17(2)(f) of the Superior Courts Act by affirming that a grave injustice may constitute exceptional circumstances warranting reconsideration of a refusal of special leave to appeal. It underscores the SCA President’s supervisory role in preventing potential miscarriages of justice, particularly in serious criminal matters involving common purpose and intent.