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[2015] ZASCA 115
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Mchunu v The State (20770/14) [2015] ZASCA 115 (9 September 2015)
THE
SUPREME COURT OF APPEAL OF SOUTH AFRICA
JUDGMENT
Case
No: 20770/14
DATE:
09 SEPTEMBER 2015
Not
Reportable
In the matter
between:
PHILANE SIHLE
MCHUNU
..................................................................................................
Appellant
And
THE
STATE
.....................................................................................................................................
Respondent
Neutral citation:
Mchunu v The State (20770/14)
[2015] ZASCA 115
(09 September 2015)
Coram: Mpati P,
Shongwe and Majiedt JJA
Heard: 09
September 2015
Delivered: 09
September 2015
Summary:Criminal
law
– leave to appeal – sought on basis of
duplication of charges – refused by regional magistrate and
high court
– State conceding existence of reasonable prospects
of success – leave granted.
ORDER
On appeal from:
Gauteng Division, Pretoria (Potterill J and Van Der Byl AJ, sitting
as a court of appeal):
1 The appeal is
upheld.
2 Paragraph 2 of the
order of the North Gauteng High Court issued on 4 June 2014 is set
aside and replaced with the following:
‘2 The
applicant is granted leave to appeal to the Gauteng Division of the
High Court, Pretoria, only against his conviction
and sentence on
count 18.’
JUDGMENT
Mpati P (Shongwe
and Majiedt JJA concurring):
[1] The appellant
was arraigned before the regional court, Piet Retief, together with
three other accused, where they stood trial
on 18 counts arising out
of a bank robbery, which took place on 25 August 2003 at Amsterdam,
Mpumalanga. He was the second accused
and was convicted on 15
September 2005 of robbery with aggravating circumstances (count 1),
three counts of attempted murder (counts
12, 13 and 14) and malicious
injury to property (count 18). The regional court imposed the
following sentences:
(a) count 1: 15
years’ imprisonment;
(b) counts 12, 13
and 14 (taken as one for purposes of sentence): eight (8) years’
imprisonment; and
(c) count 18: four
(4) years’ imprisonment.
It appears that on
16 November 2005 the regional magistrate dismissed the appellant’s
application for leave to appeal against
the conviction and sentences
imposed. The appellant subsequently petitioned the Judge President of
the North Gauteng High Court,
Pretoria, but his petition was
dismissed by two judges of that court on 4 June 2013. In a further
petition to the President of
this court he sought leave to appeal
against the refusal, by the two judges of the North Gauteng High
Court, of leave to appeal
against his conviction on count 18 and the
sentence of four years’ imprisonment imposed in respect of that
count. This court
(per Brand JA and Fourie AJA) granted the leave
sought on 28 October 2014.
[2] In his heads of
argument and in oral submissions before us counsel for the State
conceded that the appellant’s conviction
on both counts one and
18 may well have amounted to a duplication of charges. She therefore
submitted that this court should grant
leave to the appellant to
appeal against both the conviction and sentence in respect of count
18. I agree. In my view, there is
a reasonable prospect that another
court might find that the appellant should not have been convicted of
malicious injury to property.
The appeal must therefore succeed.
[3] In the result,
the following order shall issue:
1 The appeal is
upheld.
2 Paragraph 2 of the
order of the North Gauteng High Court issued on 4 June 2014 is set
aside and replaced with the following:
‘2 The
applicant is granted leave to appeal to the Gauteng Division of the
High Court, Pretoria, only against his conviction
and sentence on
count 18.’
Mpati
President
APPEARANCES
For the
Appellants: A B Booysen
Instructed by: Du
Toit Attorneys, Pretoria
SMO Seobe
Attorneys, Bloemfontein
For the
Respondent J P van der Westhuysen
Instructed by:
Director of Public Prosecutions, Pretoria
Director of
Public Prosecutions,
Bloemfontein