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South Africa: Western Cape High Court, Cape Town
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[2010] ZAWCHC 187
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Thembula v S (A687/2009) [2010] ZAWCHC 187 (13 August 2010)
IN
THE
HIGH
COURT
OF SOUTH AFRICA
(WESTERN
CAPE HIGH COURT, CAPE TOWN)
CASE
NUMBER
:
A687/2009
DATE:
13
AUGUST 2010
In
the matter between:
THABO
THEMBULA
Appellant
and
THE
STATE
Respondent
JUDGMENT
YEKISO.
J
:
With
regards to the
matter
of
appeal of the appellant, Thabo Thembula which serves before us, we
have already given an indication to both parties
that
we
intend remitting the matter to the court a
quo
for
hearing of further evidence. Further evidence that will have to be
heard by the court a
quo
is
the evidence of a
Luyanda.
who
has been referred to on numerous occasions on the
record
of
the proceedings.
Should
it transpire on the hearing of evidence of Luyanda
that
further witnesses may have to be called, the appellant will be at
liberty to call such further witnesses. So the order we are
about to
give will, by way of a summary, amount to the setting aside of the
conviction and sentence imposed on the appellant
and the remittal of
the proceedings to the court a
quo
for
hearing of further evidence.
Having
said that, the order we are about to give is the following, and
should the parties desire a written version of this order,
they will
be at liberty to liaise with my registrar and then the typed version
of this order will be made available to the parties.
Therefore the
order we are about to give is as follows:
Having
noted on the basis of the record that during the conduct of the
defence case in the court a
quo,
an
application was made for a postponement of the matter in order that
a defence witness in the person of Luyanda be called;
And
having considered that the refusal by the magistrate to allow such a
postponement, was irregular;
And
having considered further that the evidence of Luyanda is material
in the defence case;
NOW
THEREFORE IT IS ORDERED AS FOLLOWS:
The
conviction of and the sentence of life imprisonment imposed on the
appellant on a charge or rape be and is hereby set aside
The
matter is remitted to the regional court, magistrate's court,
Wynberg for the hearing of the evidence of Luyanda Zulu together
with such other further witnesses which the defence might wish to
call arising from the evidence of Luyanda Zulu.
Once
the evidence of Luyanda Zulu, together with the evidence of such
other further witnesses as referred to in paragraph 2
shall have
been heard, the matter should thereafter be further dealt with in
accordance with justice.
It
is hereby directed that the proceedings in the court
a
quo
be
enrolled for a further hearing as contemplated in paragraph 2
hereof on Monday, 20 September 2010 and may further be re-enrolled
for hearing on such days thereafter as and when circumstances may
require, depending on the availability of the defence witness
in
the person of Luyanda Zulu together with such further witnesses
referred to in paragraph 2.
5. In
the event of Luyanda Zulu not being unavailable for any reason, the
proceedings shall be referred back to this court in
order to be
dealt with further.
6. The
appellant is released on bail in an amount of R1 000,00 (one
thousand rand) on condition that the appellant appears at
the
regional court, Wynberg, on Monday 20 September 2010 or in the event
of Luyanda Zulu not being available for any reason until
the matter
is dealt with by this court.
That
is the order we give
YEKOSI,
J
BRUSSER.
AJ
:
I agree
BRUSSER.
AJ