Ramatene v S (Leave to Appeal) (CC20/2017) [2025] ZAGPPHC 1375 (7 November 2025)

begin wrapper begin container begin header begin slogan-floater end slogan-floater - About SAFLII About SAFLII - Databases Databases - Search Search - Terms of Use Terms of Use - RSS Feeds RSS Feeds end header begin main begin center # South Africa: North Gauteng High Court, Pretoria South Africa: North Gauteng High Court, Pretoria You are here: SAFLII >> Databases >> South Africa: North Gauteng High Court, Pretoria >> 2025 >> [2025] ZAGPPHC 1375 | Noteup | LawCite sino index ## Ramatene v S (Leave to Appeal) (CC20/2017) [2025] ZAGPPHC 1375 (7 November 2025) Ramatene v S (Leave to Appeal) (CC20/2017) [2025] ZAGPPHC 1375 (7 November 2025) Download original files PDF format RTF format make_database: source=/home/saflii//raw/ZAGPPHC/Data/2025_1375.html sino date 7 November 2025 REPUBLIC OF SOUTH AFRICA IN THE HIGH COURT OF SOUTH AFRICA GAUTENG DIVISION, PRETORIA Case Number: CC20/2017 (1) REPORTABLE: YES/ NO (2) OF INTEREST TO THE JUDGES: YES/ NO (3) REVISED: YES/NO DATE: 07/11/2025 SIGNATURE: In the matter between: EZEKIEL RAMATENE                                                                 Applicant and THE STATE                                                                                  Respondent JUDGMENT Mosopa, J INTRODUCTION [1]        This is an application for leave to appeal against both conviction and sentence in terms of the provision of section 316(1) of Act 51 of 1977 ("Act") alternatively section 17(1) of the Superior Court Act 10 OF 2013 ("SC Act") to either the full court of this division or the Supreme Court of Appeal. [2]        The applicant was convicted, the date of conviction is not clear however the court stamps bears the date of the 07 December 2020, standing trial as accused 4, of the following charges: 2.1.      Murder 2.2.      Murder 2.3.      Assault with intent to do grievous bodily harm 2.4.      House breaking with intent to commit a crime unknown to the state 2.5.      Contravention of section 18(2)(b) of the Riotous Assembly Act 17 of 1956 (incites, instigate, commands or procure another person to commit an offence of murder). The applicant was through the entire trial legally represented. [3]        As a sequel to such a conviction, the applicant was sentenced as follows 3.1.      Murder- Life Imprisonment 3.2.      Murder- Life Imprisonment 3.3.      Assault- 5-year imprisonment 3.4.      Housebreaking- 5 years' imprisonment 3.5.      Contravention of section 18(2)(b) of Act 17 of 1956- 15 years' imprisonment. by Barn J, who is currently retired from his services as a Judge. [4]        Section 17(2)(a) of the SC Act provides that: "[2](a) Leave to appeal may be granted by the Judge or Judges against whose decision an appeal is to be made or, if not readily available, any other Judge or Judge of the same court or division". [5]        It is based on this provisions that this matter was allocated to me to deal with the application for leave to appeal. It is trite that the court hearing the application for leave to appeal, it must be constituted the same as court which dealt with the trial matter. The matter was dealt with by Barn J as a trial court (see Gaone Jack Siamisang Montshiwe ( Ex Parte Application, SCA case no 672/2021 (3 March 2023) LEGAL PRINCIPLE [6]        Section 316(1) of Act 51 of 1977, provides "[316] (1)(a) subject to section 84 of the Child Justice Act,2008 any accused convicted of any offence by the High Court may apply to that court for leave to appeal against such conviction or against any resultant sentence or order". [7]        Section 17(1) of the SC Act, provide, "[17)(1) Leave to appeal may only be given where the judge or judges concerned are of the opinion- (a)(i) the appeal would have a reasonable prospect of success, or (ii) there are some other compelling reasons why the appeal should be heard; including conflicts judgments on the matters under consideration. (c) Where the decision sought to be appealed do not dispose of all the issues in the case, the appeal would lead to a just and prompt resolution of real issues between the parties". [8]        The application bears the onus in this kind of application to show the exitance of a reasonable prospect of success on appeal for application for leave to appeal to be granted. In the matter of Smith v S (475/10) [2011] ZA SCA (15 March 2011) when dealing with reasonable prospect of success" the following was sated: "[7] What is the test of reasonable prospect of success postulates is a dispassionate to decision, based on the fact and the law, that a court of appeal could reasonably arrive at a conclusion different to that or the trail court. In order to succeed, therefore the appellant must convince this court on proper grounds that he has prospects of success on appeal that those prospects are not remote but have a reliable chance of succeeding. More is required to be established than there is a mere possibility of success, that the case is arguable on appeal or the case cannot be categorised as hopeless. There must; in other words, be a sound rational basis for the conclusion that there are prospect of success on appeal." [9]        In the Mont Chavaux Trust (IT 2012/18) v Tina Goosen & 18 others, case no LCC 14R/2014 Land Claims Court judgment,when dealing with the reasonable prospects of success an envisaged in section 17(1)(a)(i) stated, "[6] If is clear that the threshold for granting leave to appeal against a judgment of a thigh court has been raised in the new Act. The former test whether leave to appeal should be granted was a reasonable prospect that another court might come to a different conclusion. See Van Heerdem V Crowrighr & others 1985 (21 SA 342 H The use of the word 'would' in the new statute indicates a measure of certainty that another court wiil differ from the court whose judgment is sought to be appealed against" ANALYSIS [10]      Mr Pillay on behalf of the applicant raised an issue of biasness on the presiding judge after cancelling the applicant's bail in terms of the provision of section 68 of Act 51 of 1977.The presiding Judge mero motu cancelled the applicant's bail based on the evidence presented at trial, the demeanour of the applicant when Mr Makhafela was testifying against him and also on the interest of justice. The applicant was permitted to bail at the time to the amount of R20 000.The is no evidence that he defaulted on his bail conditions prior to such cancellation of bail. [11]      Section 68 of Act 51 of 1977, provides "(1) Any court before which a charge Is pending in respect of which bail has been granted may, whether the accused has been released or not upon information on oath that- (g) it is in the interest of justice to do so" [12]      Such order was made after the applicant who was arraigned as accused 4 in the trial matter has furnished testifying under examination-in-chief, before his cross-examination. Counsel appearing on behalf of the applicant indicated to court that he was not feeling well on the day and requested that the matter be adjourned to the following day. The presiding Judge after indicating to counsel and applicant of his intentions to cancel bail of the applicant invited his counsel to add on what he has said and the counsel's respond was. "My lord at the moment, like I say, I am not well. I cannot respond''. [13]      The reasons for cancellation of bail was given after the matter was finalised. It is plain from the above that section 68(1) of Act 51 of 1977 makes it a requirement for information to be placed on oath, before a bail can be cancelled. The onus is on the state to satisfy the court on the balance of probability that there are sufficient grounds for cancellation of bail in terms of section 68 (See S v Ngumashe 2001 l2) SACR 310 (NC)). Cancellation of bail amounts to refusal of bail and such decision is appealable. [13]      The reasons provided by the trial Judge for cancelling the applicant's bail can be summarised as follows, 13.1 "Ms Wilson a person who paid the assassin fee on behalf of the applicant, when called upon to testify she denies that she deposed to a statement which amongst others stated her relationship with the applicant and had instructions from the applicant to pay money to Mr Makhafela. This led to the application declaring Ms Wilson a hostile witness. 13.2. The applicant is facing serious charges and if convicted would be sentenced to a long period of imprisonment. That when Mr Makhafela was testifying, he complained that accused 4 (applicant) was trying to intimidate him. This complain caused the court to instruct Mr Makhafela to face the court and not the dock where the applicant sat. The trial matter has reached its final stages, and in view of the above, there are reasonable grounds of apprehension that the applicant may take drastic steps to interfere with the proceedings and the course of justice. I became concerned about my own safety as well as the safety of the court personnel. 13.3. My protection in court is very limited, and I have no security measures in place when out of court. (Recently, on 10 January 2018, It was reported in the media, that a Magistrate presiding in a drug related matter at Cullinan was murdered by the accused In that case. (The said accused and two accomplices, were in November 2019, convicted in this court, by me on charge of murder in November 2019 and sentenced to life imprisonment... " [14]      I fully agree with Mr Pillay that neither the state nor the defence brought an application for the cancellation of such ball in terms of section 68. No information was obtained under oath that entitled the presiding Judge to cancel bail of the applicant. Moreover, the presiding Judge relied on the event that emanated from another matter that he presided, in which the presiding magistrate was killed by the accused and his accomplice, which has nothing to do with the matter he was presiding over. [15]      The presiding Judge, as a trial Judge was in the better position to observe the demeanour of both the witness and the accused He saw what the applicant did and advised the witness to face the opposite direction of the applicant. I don't not understand why at that stage did the state not bring an application for cancellation of the applicants bail. Also, when dealing with the evidence not before him, I am of the view that the presiding judge irregularly cancelled the bail of the applicant. [16]      The applicant did not appeal against suet, cancellation of the bail due to the fact that reasons were only made available by the presiding judge after the trial matter was finalised and argued such irregularity in casu as part of the grounds for leave to appeal. Applicant contents that such order is tantamount to apprehension of biasness on the part of the presiding judge If a presiding Judge is biased, the relief available to the affected party by is to ask for the recusal of the Judge from the matter. The difficulty in casu is that the reasons were provided after the conviction and sentencing of the applicant prohibiting such application to be brought. This irregularity on its own cannot vitiate the conviction and sentencing of the applicant and cannot be taken as a ground that the applicant succeeded in providing that he has a reasonable prospect on appeal. [17]      it is also important to interrogate the evidence implicating the applicant to the offences that he has been convicted of First is the evidence of Mr Evans Samba, who said that he was employed by the applicant as a security guard. On the 15 June at 13h00 he was patrolling the area and late at night he was together with other people sited at the gate when applicant arrived in a white bakkie, with a Canopy. he was with another person when taken by the applicant to evict a certain person from the settlement Ringo Kallie (who was arrainged as accused 3 in trial) Bambi and Abdul were all other people who were also inside a white bakkie of the applicant. [18]      When they arrived at the shack, applicant attempted to kick open the door of the shack but could not succeed. The door was broken by a crowbar Kallie. That group attacked the deceased with the variety of weapon. Days later after the death of the deceased he heard that the applicant was looking after him. He was also informed by Gift of the applicants plan to have him assassinated. It is important to note that It was conceded that Kallie was at the gate and also boarded the white bakkie Kallie apart from being the accused is also an eyewitness who places the applicant at the scene and to a certain extent testified about the role of the applicant in the commission of the offences. He could not witness everythin9 that happens on his version, there was a stage when he run away when the commission of the crime was in the process. [19]      Mr Gift Makhafela received a telephone call from prison by a person who asked him that Kallie is saying that he should assist him in prison. He received a second call with the message that Kallie wanted to see him urgently in prison. He visited Kallie in prison as a result of the second phone call. That is when Kallie told him that the applicant wanted to talk to him, and he informed him that Kallie informed him that he was a brave person and that there were people he wanted them to die. He charged an amount of between R60,000, or and R80,00 with the intention of discouraging the applicant of his plan. but he agreed to the payment of such an amount. [20]      Applicant phoned him that he must go to Shoprite to withdraw an amount of R200,000 with the assistance of a woman known as Ramatone of which he did. That is when applicant gave him the names of people that he wants to kill, a woman by the name of Mabena who lived in Hammanskral and Brian. Applicant further supplied a name of Evans and his address as a person who should be killed as well. That is when he recorded the conversation he had with the applicant. Evans listen to the recording, and Oupa introduced them to a police officer that he knew as he did not trust the police. This led to the involvement of warrant officer Minaar. There is a woman who gave him money after lying to the applicant that they killed Evans and the women was arrested by the police when she wanted to run away. The recordings on the cell phone were in Setswana but were translated to English. Those recordings were confirmed by Makhafela and then admitted into evidence. [21]      Ms Wilson who gave Mr Makhafela money on behalf of the applicant denied knowledge of the incident and that she made the statement to the police. She admitted having signed the police statement, she was then declared a hostile witness by the trial court. Warrant officer Saunders confirmed obtaining a statement made by Ms Wilson. [22]      The applicant's alibi was disapproved not only by Mr Evans Samba but also by his co-accused Kallie, who mentioned his presence on the night of the incident. Ms Wilson denial of facilitating money on behalf of applicant, is with no merit as she was arrested by the police when she wanted run away The telephone conversation were confirmed by Mr Makhafela, Evans testimony was that the applicant tried to kick, open the door of the shack which was eventually broken with a crowbar by another person. It can therefore not be contended that the applicant was wrongfully convicted of the crime of house breaking as he took part in the breaking-in of the property. It is based on the above that the applicant did not convince the court that he has prospect of success on the appeal. SENTENCE [23]      The applicant was convicted on two counts which resort under section 51 (1) of Act 105 of 1997 The trial court found that there are no substantiated and compelling circumstances justifying deviation from the prescribed minimum sentence. The deceaseds were killed by a group of people acting in common purpose. The deceaseds were killed under the pretex that they were going to be evicted. However, based on the admitted evidence there was no intention to do such. The deceaseds were Just taken out of their shacks and brutally assaulted with variety of weapons [24]      The deceased died an unnecessary death because if there was clear and proper eviction policy at the settlement the applicant and his accomplices would have not acted in the vigilant manner in which they carried themselves. The deceased died undignified death and were killed and left in the open not given decency of their bodies being covered, until they were discovered the following day when the police and other role players arrived at the scene. Based on the above the applicant failed to show the prospect of success on appeal In respect of sentence imposed. ORDER [25]      In the result, the following order is made, [1]        Application for leave to appeal against the conviction and sentence is hereby refused. Appearances For the Applicant       Mr T Pillay Instructed by             Pillay Incorporated For the Respondent: Adv Wilsenach Instructed by             Director of Public Prosecution, Pretoria Heard: Delivered:                 07 November 2025 JUDGE MOSOPA JUDGE OF THE HIGH COURT PRETORIA sino noindex make_database footer start