Padayachee v S (679/2020) [2021] ZASCA 115 (16 September 2021)

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Article written by Avyakta Sing, Candidate Attorney, checked and released by Courtney Altmuner, Associate at Schindlers Attorneys

02 November 2021


Michael Raju Padayachee (“the Appellant”) was indicted in the Regional Court, Verulam, on various criminal charges, and was convicted of rape, attempted murder and two counts of assault with the intention to cause grievous bodily harm. Same resulted in the Appellant receiving various sentences, however, the sentences were not intended to run concurrently, and accordingly, the appellant was sentences to an effective term of 24 years in prison.

Subsequent to the Appellant’s application for leave to appeal and application for condonation for the late filing of the application for leave to appeal were reused by the KwaZulu-Natal Division of the Court a quo, Pietermaritzburg (“the court a quo”), the Appellant applied to the Supreme Court of Appeal (“the SCA”) for special leave to appeal to the SCA against a full order of the court a quo, in terms of Section 16(1) of the Superior Courts Act 10 of 2013. The SCA granted the special leave to appeal.

Leave to appeal is a ‘judgment or order’ or ‘a ruling’ as intended in ss 20 (1) and 21(1) of the Supreme Court Act 59 of 1959. If the appeal succeeds, the SCA would grant leave to appeal to the appropriate Division of the Court a quo. The latter was held in S v Khosasa.1

The SCA held that the test utilized to determine whether the refusal of the court a quo to hear the appeal was justified, is whether there is a reasonable prospect of success in the envisaged appeal against the convictions and the sentences, as opposed to whether the appeal against the convictions and sentences ought to succeed.

The Appellant’s counsel submitted that (i) there were discrepancies in the evidence presented by the State’s witnesses; (ii) the State failed to call pertinent witnesses who would have explained vital portions of its case, and (iii) the court a quo failed to properly assess the evidence of the single witness in relation to some of the charges. The State conceded
that there was a reasonable prospect of success in the envisaged appeal.

Court Held

The SCA held that it was satisfied on a balance that the envisaged appeal would have a reasonable prospect of success. In terms of the cumulative sentences, the Appellant was sentenced to 24 years imprisonment with the sentences not intended to run concurrently. It was reasonably established that another court would have been misled by the Court a quo’s judgement. The appeal ought to have granted in terms of the individual sentences.

Accordingly, the SCA granted an order to the effect that the appeal was upheld and granted the Appellant with leave to appeal against his convictions and sentences to the court a quo.


This case outlines whether an order for leave to appeal has a reasonable prospect of success in terms of sentences and convictions.

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