Mathekola v State

On 17 September 2005, a group of armed men entered the Swanepoel family home in Pretoria. They forced four family members into the lounge where the applicant guarded them while his accomplices ransacked the house for valuables. One complainant had called the police before being forced from her room. Police arrived while the robbers were still present. One robber (accused 1, Peter Maphakela) was arrested inside the house while the applicant escaped but was arrested later. The applicant was convicted along with Maphakela of four counts of robbery with aggravating circumstances (counts 1, 3, 5, 7), four counts of kidnapping (counts 2, 4, 6, 8), unlawful possession of a firearm (count 14) and ammunition (count 15). Both accused received 15 years imprisonment on the robbery counts (concurrent), seven years on count 14, one year on count 15 (concurrent), and five years on each kidnapping count (concurrent with each other), resulting in effective 20 years imprisonment. Both accused unsuccessfully applied for leave to appeal. Maphakela's petition to this court was granted by one pair of judges for leave to appeal counts 2, 4, 6 and 8 to the Gauteng Division. The applicant's petition was refused by a different pair of judges. Maphakela's appeal succeeded before a full court, which found the kidnapping convictions were duplications of convictions as the sole intention was robbery.

• Whether the refusal of the applicant's petition for leave to appeal should be reconsidered under section 17(2)(f) of the Superior Courts Act 10 of 2013
• Whether exceptional circumstances existed to warrant reconsideration
• Whether the applicant had reasonable prospects of success on appeal given his co-accused's successful appeal on identical grounds
• Whether the kidnapping convictions amounted to duplication of convictions

The application succeeded. The order dismissing the applicant's petition for leave to appeal was varied to read: 'The applicant is granted leave to appeal to the Gauteng Division of the High Court, Pretoria against conviction and sentence in respect of counts 2, 4, 6 and 8.'

Where a co-accused has been granted leave to appeal on certain counts by the Supreme Court of Appeal and has succeeded on those counts before a full court, exceptional circumstances exist under section 17(2)(f) of the Superior Courts Act 10 of 2013 to warrant reconsideration of the refusal of a petition for leave to appeal by another accused on the same counts. In such circumstances, the applicant has strong prospects of success on appeal because there is already a full court decision in his favor that would have to be followed unless a subsequent court is convinced it is clearly wrong. To refuse leave to appeal in such circumstances would be unjust. An applicant for leave to appeal must show prospects of success that are not remote but have a realistic chance of succeeding.

The court noted that it 'tends to occur but rarely' that a court hearing an appeal would be convinced that an earlier full court judgment was clearly wrong. This observation suggests a strong presumption in favor of following full court decisions unless there are compelling reasons to depart from them. The court's reference to the need for consistency in the administration of justice implies that similar cases involving co-accused should be treated consistently unless there are material differences justifying different outcomes.

This case demonstrates the operation of section 17(2)(f) of the Superior Courts Act 10 of 2013, which allows the President of the Supreme Court of Appeal to refer decisions for reconsideration in exceptional circumstances. It illustrates the principle of consistency in the administration of justice, particularly where co-accused face identical charges and legal issues. The case reinforces that where a co-accused has successfully appealed on particular grounds, it would be unjust to deny another accused the opportunity to appeal on the same grounds. It also provides guidance on when exceptional circumstances exist for reconsideration, particularly in cases where different judges of the same court have reached different conclusions on similar petitions. The underlying substantive issue addressed the doctrine of duplication of convictions in robbery cases involving restraint of victims.