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[2010] ZAWCHC 415
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Yengwa and Another v S (SS104/2008) [2010] ZAWCHC 415 (3 June 2010)
IN
THE HIGH COURT OF SOUTH AFRICA
(WESTERN
CAPE HIGH COURT, CAPE TOWN)
CASE
NUMBER
:
SS104/2008
DATE
:
3
JUNE 2010
In
the matter between:
NKOSINATHI
YENGWA
…................................................................
1
st
Applicant
MBULELO
MWANDA
…..................................................................
2
nd
Applicant
and
THE
STATE
…..................................................................................
Respondent
JUDGMENT
Application
for Leave to Appeal
MOOSA,
J
This
is an application by Mr Nkosinathi Yengwa and Mr Mbulelo Mwanda for
leave to appeal against their conviction Insofar as Mr
Mwanda is
concerned, he also applies for leave to appeal in respect of his
sentence. Counsel for both the applicants set out quite
comprehensively the grounds of appeal in their notice of application
for leave to appeal and the Court is not going to repeat them.
The
Court now has to decide whether another court could come to a
different conclusion to that to which this Court had come, both
in
respect of the convictions and insofar as Mr Mwanda is concerned, in
respect of his sentence. It is so that in the case of Mr
Mwanda, the
Court found, in respect of sentence, that there was no substantial
and compelling circumstances to depart from the
prescribed minimum
sentences in respect of the murder and robbery charges. In respect of
Mr Yengwa, the Court did come to the conclusion
that there were
substantial and compelling circumstances to depart from the
prescribed minimum sentences in respect of the murder
and robbery
charges.
The
Court heard argument both by counsel for Mr Yengwa ana Mr Mwanda in
respect of both the conviction and in respect of the sentences
insofar as Mr Mwanda is concerned. It is so that the conviction is
based firstly, on circumstantial evidence; secondly, on the
question
of identification; thirdly, on the question of an alleged confession
and the pointing out and lastly, on certain forensic
evidence.
Cumulatively, the Court came to the conclusion that the State had
proved it's case beyond reasonable doubt that the accused
committed
the offences in respect of which they were found guilty, and
accordingly convicted them on those charges
In
view of the evidence tendered by the State and in view of the nature
of such evidence, and the fact that the Court convicted
them on the
basis of circumstantial evidence, this Court is satisfied that
another court might come to a different
conclusion
than the one that this Court came to in convicted the accused.
Consequently, insofar as the convictions are concerned
in respect of
both the applicants, the Court is satisfied that there are
reasonable prospects of success on appeal.
Insofar
as the sentence of Mr Mwanda is concerned, the Court found that
there were no substantial and compelling circumstances
to depart
from the prescribed minimum sentences in respect of the murder and
robbery charges. This Court is also satisfied that
another court
might come to a different conclusion than the one this Court had
come to in respect of whether there were substantial
and compelling
circumstances in respect of the murder and the robbery charges as
far as Mr Mwanda is concerned. In the circumstances
the Court also
concludes that there are reasonable prospects of success insofar as
the sentence is concerned in respect of Mwanda.
The Court
accordingly grant him also leave to appeal in respect of the
sentence. In the circumstances, the Court then grants
both Mr Yengwa
and Mr Mwanda leave to appeal to the full bench of this court in
respect of the convictions and insofar as Mr
Mwanda
is
concerned,
the Court also grants him leave to appeal in respect of the sentence
to the full bench of this division.
MOOSA, J
/bw
/...