Lebogang Peter Mashilo v The State

On 14 January 2014, the applicant Lebogang Peter Mashilo and his co-accused Mzwakhe Moagi robbed Hajoon Khan of his motor vehicle and two cellphones in Kwa-Thema. They were charged with robbery with aggravating circumstances under s 51(2) of the Minimum Sentence Act (due to the use of a firearm and deprivation of liberty), kidnapping, and unlawful possession of a firearm. Both accused were convicted on 14 October 2014 by a regional court. Both had previous convictions for robbery with aggravating circumstances, making them second offenders. The applicant was sentenced to 20 years for robbery (the prescribed minimum) and 5 years for kidnapping, totaling 25 years imprisonment (not concurrent). His co-accused Moagi received 28 years (including a firearm charge). The regional magistrate refused leave to appeal. The high court dismissed the applicant's petition for leave, while Moagi's was granted and his sentence reduced on appeal based on a finding of irregularity. The applicant then sought special leave to appeal from the SCA, which was dismissed, and ultimately applied under s 17(2)(f) of the Superior Courts Act for reconsideration by the President of the SCA.

• Whether exceptional circumstances existed under s 17(2)(f) of the Superior Courts Act 10 of 2013 to justify reconsideration of the refusal to grant special leave to appeal
• Whether the applicant was adequately forewarned about the applicability of minimum sentencing legislation
• Whether the applicant's sentence should be reduced to align with his co-accused's reduced sentence on appeal
• Whether there was a failure of justice warranting interference

The application for reconsideration under s 17(2)(f) of the Superior Courts Act was dismissed.

The binding legal principles established are: (1) Exceptional circumstances under s 17(2)(f) of the Superior Courts Act must involve more than satisfying requirements for special leave to appeal—they require that some matter of importance has possibly been overlooked or that grave injustice will otherwise result; (2) When minimum sentencing legislation is explicitly referenced in a charge sheet and discussed during proceedings, and where an accused is legally represented and has previous convictions under the same regime, there is adequate forewarning of the applicability of minimum sentencing provisions; (3) An applicant cannot successfully advance new grounds for relief in a s 17(2)(f) application that were not raised in earlier proceedings and that are contradicted by the trial record; (4) The fact that a co-accused succeeded on appeal on particular grounds does not automatically establish exceptional circumstances for another accused if the factual and procedural circumstances differ.

The court made critical observations about the full bench's judgment in the co-accused Moagi's matter, noting that: (1) The court did not specifically direct that sentences run concurrently despite indicating an effective sentence of 12 years rather than the expected 22 years; (2) There appeared to be a discrepancy between what was stated in the judgment and the actual order issued; (3) Most significantly, the finding that the accused were not forewarned about minimum sentencing applicability was not supported by the record. While the court noted these concerns, it emphasized that "the correctness of the full bench's judgment in the Moagi matter, is strictly speaking, not before us." These observations suggest judicial concern about the reasoning in Moagi's case but stopped short of formally overruling it since it was not properly before the court on appeal.

This case clarifies the high threshold for invoking s 17(2)(f) of the Superior Courts Act 10 of 2013, which allows the President of the SCA to refer refused applications for special leave to appeal back to the court for reconsideration. The judgment emphasizes that exceptional circumstances must involve more than mere prospects of success or grounds for special leave—there must be an overlooked matter of importance or potential grave injustice. The case also demonstrates the importance of proper record-keeping and the principle that applicants cannot change their grounds of appeal opportunistically after initial failures, particularly when the new grounds are contradicted by the trial record. It serves as a warning about the consequences of inconsistent appellate grounds and underscores the need for adequate forewarning about minimum sentencing provisions to be evidenced in the record.