Mathekola v State

The applicant and two co-accused faced charges in the Regional Court of the Regional Division of Pretoria. He was convicted on 12 March 2013 of four counts of robbery with aggravating circumstances and four counts of kidnapping. The kidnapping counts related to the robbery at gunpoint of four victims whose movements were restricted by preventing them from leaving the room while the robbery took place. He was sentenced to 5 years' imprisonment on each kidnapping count (counts 2, 4, 6 and 8) to run concurrently, with a total effective sentence of 20 years' imprisonment including the robbery counts. Leave to appeal was refused by both the regional court and the North Gauteng High Court, Pretoria. On 12 August 2015, this court granted leave to appeal to one of the applicant's co-accused, Peter Maphakela, against convictions and sentences on counts 2, 4, 6 and 8. However, on 26 October 2015, this court dismissed the applicant's application for special leave to appeal on grounds that there were no special circumstances meriting further appeal. The applicant then applied to the President of the Supreme Court of Appeal for referral of the decision for reconsideration under s 17(2)(f) of the Superior Courts Act 10 of 2013.

• Whether exceptional circumstances existed to refer the decision dismissing the application for special leave to appeal to the court for reconsideration
• Whether there was duplication of charges in respect of the kidnapping counts (counts 2, 4, 6 and 8)
• Whether the kidnapping counts constituted a single continuous criminal transaction carried out with a single intent of robbery

1. Condonation for the late filing of the application is granted. 2. The decision of this court dated 26 October 2015 dismissing the applicant's application for special leave to appeal is referred to the court for reconsideration and, if necessary, variation. 3. The applicant is directed to file with the Registrar of this court six copies of his application in terms of s 17(2)(f) of Act 10 of 2013, as well as six copies of his initial application to this court for special leave to appeal, within one month of the date of this order and thereafter to comply with the rules of this court relating to the conduct of appeals.

Exceptional circumstances justifying referral of a decision dismissing an application for special leave to appeal for reconsideration under s 17(2)(f) of the Superior Courts Act 10 of 2013 may exist where: (1) a co-accused facing the same charges based on the same evidence has been granted leave to appeal by the same court; and (2) failure to grant similar relief to the applicant might result in grave injustice, particularly if the co-accused's appeal were to succeed.

The court noted that the applicant's submission was essentially that there had been a duplication of charges, with the kidnapping counts constituting 'a single continuous criminal transaction which was carried out as a single intent, viz robbery'. However, the court did not make any substantive finding on this issue at this stage, as the matter was being referred for reconsideration. The merit of this argument would be considered when the matter is properly before the court on appeal.

This case demonstrates the application of s 17(2)(f) of the Superior Courts Act 10 of 2013, which provides a mechanism for reconsideration of decisions of the Supreme Court of Appeal where exceptional circumstances exist. It illustrates the court's concern for consistency in treatment of co-accused facing similar charges and evidence, and the potential for grave injustice where one co-accused is granted leave to appeal while another is denied such leave in respect of the same counts. The case also highlights the issue of potential duplication of charges where kidnapping and robbery charges arise from a single continuous criminal transaction.