Kedumetse Macwilliam Ngakantsi v The State

The appellant, a constable in the Stock Theft Unit of the South African Police Service, was convicted in the Vryburg Regional Court of corruption under s 4(1) of the Prevention and Combating of Corrupt Activities Act 12 of 2004 for selling a stray cow for R3 000 for his own benefit in January 2012. He was sentenced to five years' imprisonment for this offence. During the trial, the appellant failed to appear in court on two occasions (8 October 2015 and 18 April 2016) due to severe mental health issues, including severe major depressive disorder with suicidal tendencies, as certified by multiple doctors including psychiatrists. After an enquiry under s 72(2) of the Criminal Procedure Act 51 of 1977, the trial court concluded that the appellant's failure to appear was wilful and convicted him on two counts of contravening s 72(2), sentencing him to a fine of R200 000 on each count. The regional court dismissed his application for leave to appeal, and the high court (Djaje J and Morwane AJ) refused his petition in terms of s 309C of the CPA in chambers on 13 February 2019.

• Whether the high court should have granted the appellant's petition for leave to appeal in terms of s 309C of the Criminal Procedure Act 51 of 1977
• Whether there were reasonable prospects of success on appeal against the convictions under s 72 of the CPA for failure to appear in court
• Whether the sentences imposed for the s 72 contraventions exceeded the maximum amount prescribed by the section
• Whether there were reasonable prospects of success on appeal against the sentence imposed for the corruption conviction under s 4(1) of the Prevention and Combating of Corrupt Activities Act 12 of 2004

The appeal was upheld. The order of the high court refusing the appellant leave to appeal in terms of s 309C of the Criminal Procedure Act 51 of 1977 was set aside and replaced with an order granting the appellant leave to appeal to the full court of the North West Division of the High Court against: (a) his convictions in respect of the contraventions of s 72 of the Criminal Procedure Act 51 of 1977 and the sentences imposed pursuant thereto; and (b) the sentence imposed on him in respect of his conviction of corruption in terms of s 4 of the Prevention and Combating of Corrupt Activities Act 12 of 2004.

When a high court considers a petition for leave to appeal in terms of s 309C of the Criminal Procedure Act 51 of 1977, the test is whether there are reasonable prospects of success in the envisaged appeal. In the context of prosecutions under s 72(4) of the CPA for failure to appear in court, following S v Singo, the accused need only satisfy the court that there is a reasonable possibility that the failure was not due to fault on his part. Medical evidence demonstrating severe mental health issues such as severe major depressive disorder can establish a reasonable prospect that an appellate court would find failure to appear was not due to fault. Sentences imposed under s 72(4) must not exceed the statutory maximum prescribed by the section (a fine not exceeding R300 or imprisonment not exceeding three months).

The Court noted that regarding the sentence for corruption under s 4(1) of the Prevention and Combating of Corrupt Activities Act 12 of 2004, relevant considerations include that it was a single count not involving a large amount, the appellant was a first offender, and he had not been dismissed from the SAPS following disciplinary proceedings. The Court observed there is a reasonable prospect that an appellate court may alter the sentence or consider another form of sentence to meet the legitimate expectation of society that corrupt officials be duly punished, having regard to the particular circumstances of the case. The parties agreed that the appeal could be disposed of without hearing oral argument in terms of s 19(1)(a) of the Superior Courts Act 10 of 2013.

This case clarifies the test for granting leave to appeal in terms of s 309C of the Criminal Procedure Act 51 of 1977, reinforcing that the threshold is whether there are reasonable prospects of success in the envisaged appeal. It demonstrates the Supreme Court of Appeal's supervisory role over high courts' decisions on petitions for leave to appeal from regional courts. The judgment is significant in the context of prosecutions under s 72 of the CPA for failure to appear, emphasizing that mental health evidence can establish a reasonable possibility that failure to appear was not due to fault on the accused's part, as required by S v Singo. It also highlights the importance of ensuring that sentences imposed do not exceed statutory maximum limits. The case illustrates how the SCA will intervene where a high court has set the bar too high in refusing leave to appeal when reasonable prospects of success exist.