Thekiso v S

The appellant, Mr Zakhele Thekiso, was convicted in the Southern Transvaal Regional Court held at Daveyton of five charges: murder, attempted murder, and three charges of kidnapping. He was sentenced to 20 years' imprisonment on the murder charge, 10 years' imprisonment on the attempted murder charge, and 5 years' imprisonment on each of the three kidnapping charges. None of the sentences were ordered to run concurrently, resulting in an effective sentence of 45 years' imprisonment. The appellant's application to the Regional Court for leave to appeal against both conviction and sentence was refused. He then petitioned the North Gauteng High Court for leave to appeal against both conviction and sentence, which was dismissed by Du Plessis and Legodi JJ. A further petition was directed to the Supreme Court of Appeal, which was referred back to the Registrar of the North Gauteng High Court. The High Court refused leave to appeal against conviction but granted leave to appeal to the SCA against its refusal of the petition for leave to appeal against sentence.

• Whether leave to appeal against sentence should have been granted by the High Court
• Whether there was a reasonable prospect of success in an envisaged appeal against sentence
• Whether the trial court erred in not considering the cumulative effect of the sentences imposed
• Whether the sentence was manifestly inappropriate and disproportionately heavy when compared with sentences imposed on co-accused

The appeal was upheld. The order refusing the appellant leave to appeal was set aside and replaced with an order granting the appellant leave to appeal to the North Gauteng High Court, Pretoria, against the sentences imposed upon him in the regional court.

When hearing an appeal against the refusal of a petition for leave to appeal, the court cannot determine the merits of the underlying appeal itself. The court is confined to the question of whether leave to appeal should have been granted by the High Court. The test is whether the appellant has a reasonable prospect of success in the envisaged appeal, not whether the appeal against the sentence ought to succeed or not. Where a sentence is undoubtedly very severe (such as an effective sentence of 45 years' imprisonment) and the State concedes that there may be merit to arguments about disproportionate sentencing compared to co-accused and failure to consider cumulative effect, there exists a reasonable prospect that a court of appeal might consider the sentence too severe, and leave to appeal should be granted.

The court made non-binding observations that a sentence of 45 years' imprisonment is undoubtedly very severe. This suggests judicial concern about the severity of the sentence, though the court did not make a final determination on whether the sentence was in fact inappropriate. The court also noted that the regional magistrate had ordered some sentences for the six co-accused to run concurrently, resulting in considerably lighter sentences for them, which implicitly highlighted the disparity in sentencing treatment.

This case is significant in South African criminal procedure law as it clarifies the limited ambit of appeals against refusals to grant leave to appeal. It reinforces the principle established in earlier cases such as S v Khoasasa and subsequent cases (Matshona v S, Kriel v S, AD v S) that when considering such appeals, courts must focus on whether there is a reasonable prospect of success in the envisaged appeal, rather than determining the merits of the appeal itself. The case also addresses issues of sentencing practice, particularly regarding the importance of considering the cumulative effect of sentences and ensuring parity in sentencing among co-accused. It demonstrates the court's willingness to intervene where sentences appear manifestly inappropriate or disproportionately severe.