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[2010] ZAWCHC 613
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Zicina and Another v S (SS108/08) [2010] ZAWCHC 613 (9 December 2010)
IN THE HIGH COURT OF
SOUTH AFRICA
(WESTERN CAPE HIGH
COURT. CAPE TOWN)
CASE
NO
:
SS108/08
DATE
:
9
December 2010
In the matter between:
NTSIKELELO
ZICINA
…......................................................................
1
st
Applicant
ZUKISWA
MAKOSA
….......................................................................
2
nd
Applicant
and
THE
STATE
….....................................................................................
Respondent
JUDGMENT
(Application for Leave to
Appeal)
HENNEY, AJ
Clearly the evidence is
still fresh in this Court's mind, it's largely as I said based on
circumstantial evidence. There is a belief
that where a case is based
on circumstantial evidence that it is very easy for a Court to come
to incorrect conclusions in certain
circumstances. I have a different
view. It is very difficult to argue against circumstantial evidence;
the difference between circumstantial
evidence and oral testimony is
that when it comes to oral testimony, after it has been tested and
after you have heard and evaluated
the evidence of witnesses there
might be - and there is always a possibility that a possibility that
a court might make a mistake
in evaluating the evidence, whereas in
the case of circumstantial evidence you have a fact in front of you,
you have to draw certain
inferences there from. I have considered all
the evidence upon which I based my findings and I was beyond
reasonable doubt convinced
that the accused had committed the
offences as charged. Apart from this if you throw the two statements
they made into the basket
that also strengthened my finding with
regards to the guilt and on that alone, having regard to the
circumstances of that case
I was beyond reasonable doubt convinced of
their guilt.
Therefore
with regards to the
CONVICTIONS
ON BOTH COUNTS INSOFAR AS BOTH THE ACCUSED ARE CONCERNED THE
APPLICATION FOR LEAVE TO APPEAL IS DENIED
.
There is always a
possibility when it comes to sentence that a Court might be wrong, in
my experience there is always a chance that
another court might come
to a different conclusion with regards to a sentence, especially with
regards to the fact that both the
accused are literally first
offenders, notwithstanding the fact that they have committed a very
serious offence
In
the result I am of the view that there is a possibility and a chance
that another Court might come to another conclusion when
it comes to
sentence, especially on count 1, Therefore the
APPLICATION
FOR LEAVE TO APPEAL WITH REGARDS TO SENTENCE IS THEN GRANTED IN
RESPECT OF THE BOTH ACCUSED ON BOTH COUNTS.
HENNEY,
AJ