Nceba Tyhulu v The State

The appellant, Mr Tyhulu, was convicted in the Regional Court, Paarl on two counts of contravening the Prevention and Combating Corrupt Activities Act of 2004 (POCCA) (counts 1 and 2) and two counts of contravening section 5(a) of the Drugs and Drugs Trafficking Act 40 of 1992 (counts 3 and 4). He was sentenced on 13 July 2015 to 10 years' imprisonment on counts 1 and 2 taken together, and 3 years' direct imprisonment on counts 3 and 4 taken together. The appellant applied to the trial magistrate for leave to appeal against both conviction and sentence, which was refused. He then petitioned the Judge President of the Western Cape High Court, Cape Town for leave to appeal, which was also dismissed. He subsequently petitioned the Supreme Court of Appeal for special leave to appeal against the dismissal of his application for leave to appeal.

• Whether the appellant had reasonable prospects of success on appeal against his convictions on all counts
• Whether the test for granting leave to appeal on petition was correctly applied by the high court
• Whether there were misdirections by the trial magistrate in rejecting the appellant's evidence regarding pressure, threats and financial inducement by an undercover police agent
• Whether the state proved beyond reasonable doubt that the appellant dealt in drugs (counts 3 and 4) as opposed to mere possession

1. The appeal against the dismissal of the application for leave to appeal in respect of counts 1 and 2 (corruption) was dismissed. 2. The appeal against the dismissal of the application for leave to appeal in respect of counts 3 and 4 (drug dealing) was upheld. 3. The appeal against dismissal of the appeal against the sentence imposed on counts 3 and 4 as well as the effective sentence of 13 years' imprisonment was upheld. 4. The order of the court below was replaced with an order dismissing the application for leave to appeal against counts 1 and 2, but granting the appellant leave to appeal to the Western Cape High Court, Cape Town, against the conviction and sentence imposed in respect of counts 3 and 4 as well as the effective sentence of 13 years' imprisonment.

When determining an application for special leave to appeal against the refusal of leave to appeal on petition, the issue to be decided is whether the appellant has a reasonable prospect of success on appeal, not the merits of the appeal itself. The test is whether the prospects of success are not remote but have a realistic chance of succeeding. The appellant must convince the court on proper grounds that such prospects exist. This is consistent with the principles established in S v Khoasana 2003 (1) SACR 123 (SCA) and S v Matshona [2008] ZASCA 58; [2008] 4 All SA 68 (SCA).

The court observed that with regard to counts 3 and 4, it was doubtful whether the state proved beyond reasonable doubt that the appellant dealt in drugs, and suggested that there were reasonable prospects that another court may conclude that the appellant ought to have been convicted of possession of tik instead of dealing in the substance. The court also noted that the appellant's argument that he was pressured and threatened by an undercover police agent and offered financial inducement did not present reasonable prospects of success regarding the corruption convictions.

This case clarifies the proper approach to applications for special leave to appeal against the refusal of leave to appeal on petition. It reinforces the distinction between determining whether there are reasonable prospects of success on appeal (the test at the leave stage) versus determining the merits of the appeal itself. The case demonstrates the application of this test in the context of criminal convictions, showing that different counts may have different prospects of success. It also illustrates the court's scrutiny of whether the state has proved its case beyond reasonable doubt, particularly in distinguishing between drug dealing and mere possession.