Khumalo v The State

The appellant was charged in the Regional Court, Alexandra, with two counts of robbery with aggravating circumstances arising from an armed robbery at a restaurant in Paulshof, Rivonia, on 2 September 2012. The appellant and two accomplices, armed with firearms, robbed the restaurant manager of approximately R5 000 and additional cash kept in a safe. Patrons were ordered to lie down at gunpoint. After the robbery, the appellant and his accomplices fled on foot. The appellant was pursued by the manager, restaurant staff, patrons, and a security guard, and was apprehended in a nearby street after being cornered, where he discarded a loaded firearm. The appellant was convicted on one count of robbery with aggravating circumstances and sentenced to 15 years’ imprisonment in terms of s 51 of the Criminal Law Amendment Act 105 of 1997. He was acquitted on the second count due to lack of evidence. Leave to appeal was refused by the regional court and by the High Court on petition, leading to a further appeal to the Supreme Court of Appeal limited to whether leave to appeal should have been granted.

The appeal against the refusal of leave to appeal was dismissed.

The case reaffirms the strict threshold for granting leave to appeal in criminal matters, particularly where prior courts have refused leave. It underscores the approach to assessing reasonable prospects of success and reinforces the application of the minimum sentencing regime under the Criminal Law Amendment Act, as interpreted in S v Malgas.