Sinethemba Ntlanyeni v The State

The applicant (third accused) was charged together with two co-accused before the Eastern Cape High Court, Port Elizabeth with assault with intent to do grievous bodily harm, kidnapping and two counts of rape. The applicant and the second accused were convicted only on the kidnapping and two rape charges and sentenced to an effective 22 years' imprisonment. The first accused was convicted on all charges. The trial court refused leave to appeal to all three accused. Subsequently, the first and second accused successfully applied to the Supreme Court of Appeal for leave to appeal - the first accused was granted leave to appeal against convictions on 7 June 2012 and the second accused on 22 November 2012. The applicant's application for leave to appeal, brought on 11 January 2012, was dismissed on 1 September 2014. However, the applicant had erroneously been advised in 2012 that he had been granted leave to appeal to the full bench of the Eastern Cape High Court, Grahamstown. The error arose because the order granting leave to appeal to the first accused was mistakenly understood to apply to the applicant as well. When the applicant's 'appeal' was pending before the Eastern Cape High Court he learned of the error. Within seven days of being advised of this, on 15 July 2015, he brought an application for reconsideration under s 17(2)(f) of the Superior Courts Act 10 of 2013, some ten months after his application for leave to appeal had been dismissed.

• Whether an application for reconsideration under s 17(2)(f) of the Superior Courts Act 10 of 2013 can be entertained when filed outside the stipulated one month period
• What constitutes 'exceptional circumstances' under s 17(2)(f) of the Superior Courts Act
• Whether the President of the Supreme Court of Appeal's mero motu power to refer a decision for reconsideration is time-bound
• Whether, on the merits, the applicant should be granted leave to appeal against his conviction

Leave to appeal was granted to the applicant to appeal to the full bench of the Eastern Cape High Court, Grahamstown against his conviction.

The binding legal principle established is that under s 17(2)(f) of the Superior Courts Act 10 of 2013, while applications for reconsideration of leave to appeal decisions must be filed within one month, the President of the Supreme Court of Appeal's mero motu power to refer a decision for reconsideration is not time-bound. The only requirement for exercise of the mero motu power is that the circumstances must be exceptional. Where the President becomes aware of exceptional circumstances through an application filed outside the one-month period, the President may still exercise his or her mero motu discretion to refer the matter for reconsideration, effectively treating it as if the President had become aware of the circumstances by other means. What constitutes exceptional circumstances must be determined on the merits of each case.

The court made non-binding observations regarding the merits of the substantive appeal, noting that although evidence supported the complainant's allegations that she was attacked, her evidence regarding the rape and her identification of the applicant as one of the culprits merited reconsideration. The court also observed that the fact that the applicant's co-accused were granted leave to appeal strengthened the view that leave should be granted to the applicant. The court referenced earlier authorities (R v Maihlome 1913 AD 133 and R v Kgolane & others 1959 (4) SA 483 (A)) to illustrate that what constitutes exceptional circumstances must be determined on the merits of each case.

This case clarifies the interpretation and application of s 17(2)(f) of the Superior Courts Act 10 of 2013, particularly regarding the time limits for applications for reconsideration of leave to appeal decisions. It establishes that the President's mero motu power to refer decisions for reconsideration is not subject to the one-month time limit that applies to applications brought by litigants. The judgment is significant for its flexible approach to exceptional circumstances, particularly where administrative errors have prejudiced an applicant and where co-accused have been granted leave to appeal on similar facts. It demonstrates the court's willingness to ensure substantive justice is not defeated by procedural irregularities beyond the control of an applicant.