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[2011] ZAGPPHC 45
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Shubane and Another v S (A448/2006) [2011] ZAGPPHC 45 (1 April 2011)
NOT
REPORTABLE
IN
THE HIGH COURT OF SOUTH AFRICA
NORTH
GAUTENG HIGH COURT)
Case
number: A448/2006
Date:01/04/2011
In
the matter between:
MADALA
GOODWILL
SHUBANE
...........................................................................
1st
Applicant
GEORGE
MONDLANA
..........................................................................................
2nd
Applicant
and
THE
STATE
..............................................................................................................
Respondent
LEAVE
TO APPEAL JUDGMENT
PRETORIUS
J.
In
this matter Mr George Mondlana's application for appeal against
sentence was heard on 15 June 2010 and dismissed by this court.
His
co-accused, Mr Madala Goodwill Shubane, now applies to this court for
condonation for the late filing of his application for
leave to
appeal. The application for condonation is granted.
The
applicant is applying for leave to appeal only against sentence. The
learned magistrate sentenced the appellant to 17 years
imprisonment
for robbery with aggravating circumstances - 2 years more than the
minimum sentence prescribed by
section 51
(2) of the
Criminal
Procedure Amendment Act 105 of 1997
. The court a quo set out the
reasons for imposing a sentence higher than the prescribed sentence.
Ms
van Wyk, the legal representative for the applicant, referred the
court to the unreported matter of
AA Maake vs Director of Public
Prosecutions (481/09)
[2010] ZASCA 51
(31 March 2010)
where Navsa
and Tshiqi JJA held at paragraph 27:
"Although
the appellant was represented, it Is clear from the record that there
is no indication at all that the magistrate
considered imposing the
maximum sentence.
The appellant's legal representative could
consequently not have been invited to make submissions in this
regard.
''(court's emphasis)
Although
the learned magistrate had motivated the reasons for the higher
sentence in his judgment, he did not indicate at any stage
during the
proceedings that he was contemplating, a higher sentence than the
minimum sentence. The applicant's legal representative
had no
opportunity to make submissions to the court before sentencing. It
cannot be said that the applicant had a fair opportunity
to deal with
the question of the higher sentence.
Therefore
this court is of the opinion that leave to appeal should be granted
in these circumstances.
Due
to the fact that the court is granting leave to appeal to the present
applicant the order by which leave to appeal was dismissed
on 15 June
2010 for Mr George Mondlana is recalled and leave to appeal is
granted in his application for leave to appeal.
It
is ordered:
1.
Leave to appeal to the Supreme Court of Appeal against the sentence
of 17 years is granted to the applicant;
2.
The order against Mr George Mondlana dated 15 June 2010 is recalled;
3.
Leave to appeal to the Supreme Court of Appeal against the sentence
of 17 years is
granted
to Mr George Mondlana
C
Pretorius
Judge
of the High Court
I
agree,
PG
Preller
Judge
of the High Court
Case
number A634/10
Heard
on : 31 March 2011
For
the Applicant : Advvan Wyk
Instructed
by Legal Aid Board
For
the Respondent :Adv Sampson
Instructed
by : Director of Public Prosecutions
Date
of Judgment :