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S v Nkalanga and Another (CC 375/07) [2008] ZAGPHC 461 (18 June 2008)

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IN THE HIGH COURT OF SOUTH AFRICA

TRANSVAAL PROVINCIAL DIVISION

(CIRCUIT LOCAL DIVISION OF THE EASTERN CIRCUIT DISTRICT)

DELMAS

Case No: CC 375/07

Date: 2008/06/18


In the matter of:


THE STATE


versus


SITHEMBISO NKALANGA ….................................................................Accused 2

JULY MONDLANE....................................................................................Accused 3


JUDGMENT I.R.O. APPLICATIONS FOR LEAVE TO APPEAL


[1] Adv. Manzini on behalf of accused 2 and of accused 3 immediately after the passing of sentence verbally applied for leave to appeal against their convictions and sentences.


[2] The grounds upon which they applied for leave to appeal against their convictions are that another Court might regard the following findings as incorrect: (a) that the evidence established the guilt of each accused beyond a reasonable doubt; (b) that the contradictions between the versions of the Mkhize witnesses were not material; (c) that the contradictions between the version of accused 2 and that of his girlfriend, Ms. Evelyn Thlathlahidi, were material; and (d) the rejection of the alibi defences raised by accused 2 and by accused 3.


[3] The grounds in support of the applications for leave to appeal against their convictions raise aspects with which I have extensively dealt in my judgment and they need not be repeated herein.


[4] I approached the identification evidence with the required caution. The three Mkhize’s corroborated each other in material respects, and certain aspects of their identification evidence were also corroborated by the accused, such as that Fanyane had seen accused 2 on a prior occasion, the constant redness of accused 3’s eyes due to his occupation as a welder, and his difficulties with the Zulu language.


[5] The identification evidence was reliable and overwhelming. I considered the evidence given by accused 2, and by his girlfriend, and the evidence given by accused 3 in the light of all the evidence and was mindful thereof that lies in themselves and improbabilities in their versions do not establish their guilt.


[6] I am unable to find that the accused have reasonable prospects of succeeding in appeals against their convictions.


[7] The grounds upon which the accused applied for leave to appeal against their sentences are that another Court may find the facts that each accused was a first offender, has a family and minor children, has not been shown incapable of being rehabilitated, has a low level of education, and, so it was submitted, is not a danger to society, cumulatively to have constituted ‘substantial and compelling’ circumstances that justified the imposition of lesser sentences than the minimum prescribed sentences.


[8] The grounds in support of the applications for leave to appeal against their sentences also raise aspects with which I have dealt in my judgment on sentence.


[9] The deceased was shot in cold blood. The accused have not shown any remorse. I am of the view that each accused is a danger to society.


[10] I am also not satisfied that the accused have reasonable prospects of succeeding in appeals against their sentences.


[11] The applications for leave to appeal against their convictions and against their sentences are accordingly refused.


P.A. MEYER

JUDGE OF THE HIGH COURT