Malele v S; Ngobeni and Others v S (724/16) [2016] ZASCA 115 (13 September 2016)

Malele v S; Ngobeni and Others v S (724/16) [2016] ZASCA 115 (13 September 2016)

The court found that the trial court's application of the doctrine of common purpose and the finding of dolus eventualis as the form of intent were questionable and might not withstand scrutiny by another court. The evidence did not clearly establish that all applicants acted with common purpose or foresaw the death of the deceased. The fact that a co-accused was granted leave to appeal on the same facts, while not determinative, highlighted inconsistencies in the trial court's approach. The cumulative effect of these concerns constituted exceptional circumstances, and a grave injustice might result if the refusal of special leave to appeal was not reconsidered. Accordingly, the decision...

Citation
[2016] ZASCA 115
Parties
Applicant: Meshack Malele; Applicant: Sipho Sidwell Ngobeni; Applicant: Bongani Kolisi; Applicant: Linda Sololo; Respondent: The State
Court
Supreme Court of Appeal
Jurisdiction
South Africa
Judgment Date
13 September 2016
Case Number
724/16
Procedural Posture
Leave to Appeal / Application for Reconsideration of Refusal of Special Leave to Appeal
Outcome
Application for condonation granted; decision refusing special leave to appeal referred for reconsideration and possible variation.
Judges
Mpati
Legal Topics
Leave to Appeal, Doctrine of Common Purpose, Dolus Eventualis, Condonation, Superior Courts Act Section 17 2 F
Criminal Law Civil Procedure Leave to Appeal Doctrine of Common Purpose Dolus Eventualis Condonation Superior Courts Act Section 17 2 F

Case Brief

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Parties

Meshack Malele

Applicant

Sipho Sidwell Ngobeni

Applicant

Bongani Kolisi

Applicant

Linda Sololo

Applicant

The State

Respondent

Procedural Posture

Leave to Appeal / Application for Reconsideration of Refusal of Special Leave to Appeal

Legal Issues

  1. 1 Whether the refusal of special leave to appeal should be reconsidered due to exceptional circumstances.
  2. 2 Whether the doctrine of common purpose was correctly applied by the trial court.
  3. 3 Whether the applicants' form of intent was properly classified as dolus eventualis.

Ratio Decidendi

The court found that the trial court's application of the doctrine of common purpose and the finding of dolus eventualis as the form of intent were questionable and might not withstand scrutiny by another court. The evidence did not clearly establish that all applicants acted with common purpose or foresaw the death of the deceased. The fact that a co-accused was granted leave to appeal on the same facts, while not determinative, highlighted inconsistencies in the trial court's approach. The cumulative effect of these concerns constituted exceptional circumstances, and a grave injustice might result if the refusal of special leave to appeal was not reconsidered. Accordingly, the decision...

Court Disposition

Application for condonation granted; decision refusing special leave to appeal referred for reconsideration and possible variation.

Orders

  • Condonation is granted to the applicants in both applications for the late filing of their applications.
  • The decision of this court dated 3 May 2016 dismissing the applicants' application for special leave to appeal against their conviction and sentence is referred to the court for reconsideration and, if necessary, variation, in terms of s 17(2)(f) of the Superior Courts Act 10 of 2013.