Llale v S

The appellant, Mr Khantsho Llale, was arrested at FNB Stadium on 17 August 2013. He and his co-accused appeared in the Regional Court for the Regional Division of Gauteng, Johannesburg, on 15 January 2014, facing one count of attempted theft of a white Toyota Hilux bakkie and another count of theft of three wheel caps of a different motor vehicle. On count two (theft charge), the appellant and his co-accused were acquitted and discharged at the close of the State case. At the conclusion of the trial on 12 May 2014, they were all convicted on one count of attempted theft of a motor vehicle based on the evidence of a single witness, Mr Scheepers. They were each sentenced to three years' imprisonment. Their applications for leave to appeal were dismissed. All three petitioned the Judge President under s 309C of the Criminal Procedure Act. The appellant's application was separated from those of his co-accused. His petition was dismissed on 27 May 2015, even though his co-accused's petition was granted and their appeal succeeded on 29 May 2015. The appellant then approached the Supreme Court of Appeal for special leave to appeal against the dismissal of his petition, which was granted on 13 June 2016.

• Whether there are reasonable prospects of success in the appellant's appeal against conviction
• Whether there are special circumstances present which would justify the grant of special leave to appeal to the high court
• Whether the conviction based on the evidence of a single witness was sound
• Whether the trial court properly considered the elements of the charge of attempt to steal a motor vehicle and inconsistencies in the witness evidence

The appeal was upheld. The order of the court a quo was set aside and substituted with an order granting the appellant's petition for leave to appeal in terms of s 309C of the Criminal Procedure Act 51 of 1977 against conviction and sentence.

The binding legal principle established is that where an appellant's co-accused have succeeded in having their convictions set aside on appeal based on the same evidence and circumstances, this constitutes on its own a special circumstance that justifies the grant of leave to appeal for the appellant. Further, where a conviction is based on the evidence of a single witness whose evidence is not convincing and is improbable in several respects, and there is no reason to reject the accused's version, this demonstrates reasonable prospects of success on appeal. Trial courts must properly take into account inconsistencies between written statements and oral testimony of witnesses, and must properly consider all elements of criminal charges, particularly in cases of attempted theft. The failure to do so constitutes grounds for granting leave to appeal.

The court made obiter observations about the appropriateness of disposing of certain appeals without oral argument under s 19(a) of the Superior Courts Act 10 of 2013. Mbatha AJA, agreeing with views expressed by Wallis JA in Zulu v S, noted that exercising this power in the interest of expeditious disposal of appeals is an appropriate use of judicial resources and will both speed the process of setting down appeals for hearing and save costs that would otherwise have been incurred from the public purse. This is particularly relevant where the legal issues are clear and do not require oral argument for proper determination.

This case is significant in South African criminal procedure law as it demonstrates the application of the test for granting special leave to appeal under s 16(1)(b) of the Superior Courts Act 10 of 2013. It illustrates that where co-accused succeed on appeal, this constitutes a special circumstance justifying the grant of leave to appeal for an appellant in a similar position whose petition was wrongly dismissed. The case also emphasizes the importance of properly evaluating single witness evidence, particularly where there are inconsistencies between written statements and oral testimony, and the need for trial courts to properly consider all elements of criminal charges. The judgment also demonstrates the court's willingness to use s 19(a) of the Superior Courts Act to dispose of appeals without oral argument where appropriate, in the interests of expeditious justice and efficient use of judicial resources.