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[2010] ZAWCHC 610
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Mgwali v S (SS24/10) [2010] ZAWCHC 610 (8 December 2010)
IN THE HIGH COURT OF
SOUTH AFRICA
(WESTERN CAPE HIGH
COURT, CAPE TOWN)
CASE
NO:
SS24/10
DATE:
8
December 2010
In the matter between:
LINDELA
MGWALI
….............................................................................
1
st
Applicant
and
THE
STATE
….........................................................................................
Respondent
JUDGMENT
(Application for Leave
to Appeal)
BINNS-WARD.
J
In this matter there is
before me an application for condonation for the non-appearance of
the applicant for leave to appeal's
legal representative on the day
the application for leave to appeal was set down and the application
for leave to appeal itself.
The application for
leave to appeal in the current matter is by Lindela Mgwali, who was
accused 1 in the trial, heard and determined
by me. His application
for leave to appeal had been due to be heard together with that of
his co-accused. I handed down judgment
in the application by accused
2 for leave to appeal on 15 November 2010 and in that instance
granted leave to appeal to accused
2 against his conviction only.
Accused 2's application for leave to appeal against his sentence was
dismissed.
My
judgment in regard to the current application for leave to appeal,
which I am entertaining because condonation for the non-appearance
of his legal representative will be granted, because of the primary
interest of the applicant himself, should be read together
with my
judgment in the application for leave to appeal by accused 2. I
referred quite extensively in that earlier judgment to
the recent
judgment of the Supreme Court of Appeal in
S
v Matvitvi
[2010]
ZASCA 127
which was delivered on 30 September 2010. I do not intend
to repeat those references in this judgment, regard should be had to
them with reference to the earlier judgment.
The application for
leave to appeal against sentence is based on four grounds set out in
the notice of application. The first
ground is "that the
sentence of 15 years imprisonment for one count of robbery with
aggravating circumstances is shockingly
inappropriate". There
is no substance in that contention, the sentence imposed for the
offence of which the applicant was
convicted was the prescribed
minimum sentence and the Court was bound to impose it unless the
existence of substantial and
compelling circumstances
not to do so was proven.
In
that regard Mr
Raphaels
for
the applicant today submitted in support of his argument that there
was a reasonable prospect that another Court might find
that I have
erred in not finding the existence of such substantial and
compelling circumstances. The issue that accused 1 had
after the
fatal shot had been fired at the deceased shown a moment's hesitancy
in joining his co-accused in the motor vehicle
which they had robbed
the deceased of and in which they departed the scene. That was a
factor that I took into account in determining
an appropriate
sentence, and it was the factor which resulted in a minor
differential between the sentence imposed on accused
1, the
applicant in this matter, and his co-accused.
It could not be
overlooked in having regard to that factor that notwithstanding the
hesitancy referred to the accused had thereafter
participated in the
further conduct of the perpetrators of the offence with no
indication of any intention by him to distance
himself from what had
occurred.
The
other factor that was urged in support of the existence of
substantial and compelling circumstances was the alleged
youthfulness
of the accused. The accused was 25 years of age
at
the time of sentencing, and that occurred about a year after the
commission of the offence. As is apparent from
Matyityi
's
case the age of the accused does not count on the face of matters as
bringing him within the concept of youthfulness. The fact
that he
completed his high school education, two or three years later than
might ordinarily have occurred had the accused commenced
his
schooling and progressed therewith in the ordinary course is by
itself, and in isolation, not a factor suggesting any diminished
moral blameworthiness on his part. The Court can take judicial
notice that the education system in this country, particularly
in
deprived areas, is such that it is not at all unusual for persons to
complete their schooling later than might ideally have
occurred.
What is notable is that the accused reached Grade 12 in schooling,
which suggests that he was able to progress to an
advanced stage at
high school.
The other issues were
that he was gainfully employed at the time of his arrest and that he
had maintenance obligations to a minor
child.Those also are,
although in the ordinary sentencing sense valid considerations in
the context of a minimum sentence regime
not a basis to depart from
it. I am not persuaded that there is a reasonable prospect that
another Court would find that I had
erred in not finding the
existence of such circumstances.
SS24/10
A
further ground of the application was that the trial court had erred
in overemphasizing the interest of the community and had
put too
little emphasis on the interest of the accused. I need say no more
in that regard than to refer to my comments, with
reference to
Matyityi
's
case, in the judgment dismissing accused 2's application for leave
to appeal against sentence.
The other ground on
which the application was brought was that the trial court had erred
in finding that there are substantial
and compelling circumstances
present which would allow it to impose a lesser sentence in the
prescribed minimum, and then failing
to do so. That ground is
plainly formulated on a misreading of the judgment - I did not find
the existence of any substantial
or compelling circumstances to
depart from the prescribed minimum sentence.
In
the circumstances the
APPLICATION
FOR CONDONATION IS GRANTED.
The
APPLICATION
FOR LEAVE TO APPEAL
BINNS-WARD.
J