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[2015] ZASCA 106
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Mandla Sithole v The State (20393/2014) [2015] ZASCA 106 (19 August 2015)
SUPREME
COURT OF APPEAL OF SOUTH AFRICA
JUDGMENT
Not
Reportable
Case
No: 20393/2014
In
the appeal between:
MANDLA
SITHOLE
First Appellant
and
THE STATE
Respondent
Neutral
citation:
Mandla
Sithole
v
The
State
(
20393/2014
)
[2015] ZASCA 106
(19 August 2015).
Coram:
Mhlantla, Tshiqi
and Dambuza JJA
Heard:
19
August
2015
Delivered:
19 August 2015
Summary:
Criminal
Procedure – appeal against refusal to grant leave to appeal on
petition – whether leave to the high court ought
to have been
granted.
ORDER
On
appeal from:
Gauteng
Division of the High Court, Pretoria (Mavudla J and Mabena AJ sitting
as court of appeal):
1
The appeal is upheld.
2
The order of the high court is set aside and replaced with the
following:
‘
The
applicant is granted leave to appeal to the Gauteng Division of the
High Court against his conviction of two counts of murder
in the
Regional Court, Standerton, Mpumalanga.
3
The matter is remitted to the court a quo to entertain the merits of
the appeal.
JUDGMENT
Mhlantla
JA (Tshiqi and Dambuza JJA concurring):
[1]
This is an appeal against the refusal by the Gauteng Division of the
High Court, Pretoria of the appellant’s application
for leave
to appeal to that court against his conviction of two counts murder
in the Regional Court, Standerton, Mpumalanga (refusal
of his
petition). The appeal is with leave of the court a quo.
[2]
The conviction on the two counts of murder arose out of a traffic
incident which occurred on 4 April 2009 at Charl Cilliers
and which
resulted in the death of Ms Jeaneth Nontlantla Ngema and Mr Vusimuzi
Petrus Ngema (the driver of one of the motor vehicles
involved in the
collision). The appellant was the driver of the other motor vehicle
involved in the collision.
[3]
Both the State and the appellant adduced evidence. At the end of the
trial, the appellant was convicted on both counts of murder.
He was
sentenced to eight years’ imprisonment on each of the counts.
The court ordered the sentences to run concurrently.
[4]
On 18 April 2012, the appellant applied for leave to appeal against
conviction and sentence. His application was partially successful
in
that the Regional Magistrate granted leave against sentence only.
Aggrieved by the outcome of his application, the appellant
lodged his
petition in the high court on 3 November 2012 and applied for
leave to appeal to this court against the refusal
of his petition in
respect of the convictions. On 19 July 2013, the high court granted
the appellant leave to appeal against the
refusal of his petition.
This court therefore has jurisdiction to entertain the appeal since
leave to appeal was granted before
the
Superior Courts Act 10 of 2013
came into operation.
[1]
[5]
The issue before this court is whether the high court ought to have
granted leave to appeal against the convictions.
[6]
Before us, counsel for the State correctly conceded that the
appellant has reasonable prospects of success on appeal against
his
conviction on the two murder charges. I agree with the submission
that the appeal on the merits is arguable. In the result
the order by
the high court cannot stand and has to be set aside. The appeal must
therefore succeed.
[6]
In the result the following order is made:
1
The appeal is upheld.
2
The order of the high court is set aside and replaced with the
following:
‘
The
applicant is granted leave to appeal to the Gauteng Division of the
High Court against his conviction of two counts of murder
in the
Regional Court, Standerton, Mpumalanga.
3
The matter is remitted to the court a quo to entertain the merits of
the appeal.
__________________
NZ
MHLANTLA
JUDGE
OF APPEAL
APPEARANCES
:
For
Appellant: P Pistorious
Instructed
by: Van Zyl Le Roux Inc
Pretoria
c/o
Honey Attorneys
Bloemfontein
For
Respondent: P Voster
Instructed
by: Director of Public
Prosecutions
High Court
Pretoria
[1]
S v Khoasasa
2003 (1) SACR 123
(SCA) at paras 14 and 19 – 22;
S
v Tonkin
2014 (1)
SACR 583
(SCA).