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[2010] ZAWCHC 163
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Xabenedlini v S (A484/01) [2010] ZAWCHC 163 (30 June 2010)
IN
THE
HIGH COURT OF SOUTH AFRICA
(WESTERN CAPE, CAPE
TOWN)
CASE NO
:
A484/01
DATE
:
30
JUNE 2010
In
the matter between:
MANDLA
XABENDLINI
Appellant
and
THE
STATE
Respondent
JUDGMENT
(Application for Leave to
Appeal)
THRING,
J
This is a very belated
application by the second appellant for leave to appeal to the
Supreme Court of Appeal against the judgment
delivered in this Court
on the 2
nd
September, 2003, confirming his conviction on certain charges. The
application is brought under s 20(4) of the Supreme Court Act,
No. 59
of 1959. There is also an application for condonation of the lengthy
delay which has occurred in bringing the application
for leave to
appeal. We grant the condonation sought.
The second appellant was
convicted in the magistrate's court on five charges, namely:
robbery with aggravating
circumstances;
theft
of a motor vehicle;
the
unlawful possession of a firearm;
the
unlawful possession of ammunition, and
unlawfully pointing a
firearm in contravention of s. 39(1)(i) of the Arms and Ammunition
Act, No. 75 of 1969.
On charge 1 he was
sentenced to fifteen years' imprisonment; on charge 2 he was
sentenced to three years' imprisonment; on charges
3 and 4 he was
sentenced to two years' imprisonment; and on charge 5 he was
sentenced to six months' imprisonment, which was ordered
to run
concurrently with the sentences on charges 3 and 4.
On appeal before us the
convictions and sentences of the second appellant on charges 1, 2 and
5 were confirmed, but the convictions
and sentences on charges 3 and
4 were set aside. It is against the order of this Court in regard to
charges 1, 2 and 5 that the
second appellant now seeks leave to
appeal further.
I am of the view that no
reasonable prospect of success exists in an appeal against the
convictions or sentences on charges 1 and
2, and leave will
consequently not be granted in respect thereof. However, as regards
charge 5, the pointing of the firearm, there
is a conflict of
authority on what constitutes the pointing of a firearm for the
purposes of the relevant subsection. In
S
v Van Zvl
,
1993(1) SACR 338 (C)
Williamson.
J
said
in this Division at 340(g),
Van
Deventer
.
J. concurring:
"I thus find myself
in respectful disagreement with the views expressed in the
Humphries
case.
In my opinion, on a proper construction of s. 39(1)(i) the offence in
question is only committed when the firearm is pointed
directly at
the person concerned so that if discharged the bullet would hit the
victim."
However, in
S
v Hans
.
1998(2) SACR 406 (E)
Erasmus.
J.
,
with
Ludorf.
J.
concurring, disagreed with the decision in the
Van
Zyl
case, and declined to follow it.
In the instant matter we
preferred the approach adopted in
Hans'
case, and we respectfully disagreed with the views expressed by the
learned judges in
Van
Zvl
's
case. However, another Court might reach a different conclusion.
Consequently
LEAVE
IS GRANTED TO THE SECOND APPELLANT TO APPEAL TO THE SUPREME
COURT OF APPEAL ONLY AGAINST THAT PART OF THE ORDER
OF THIS COURT
IN WHICH THE CONVICTION AND SENTENCE OF THE SECOND APPELLANT ON
CHARGE 5 WERE CONFIRMED
.
The appeal is limited to the grounds set out in 5 paragraphs 1.2, 6
and 7 of the second appellant's application for leave to appeal
dated
July 2008, only insofar as they relate to the conviction and sentence
of the second appellant on charge 5.
Save as aforesaid, the
application for leave to appeal is refused.
THRING,
J
I agree
McDOUGALL,
AJ