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[2016] ZAECPEHC 40
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Gocini v S (CC29/2013) [2016] ZAECPEHC 40 (23 August 2016)
NOT
REPORTABLE
IN
THE HIGH COURT OF SOUTH AFRICA
EASTERN
CAPE LOCAL DIVISION, PORT ELIZABETH
Case
no: CC29/2013
Date
heard: 28/7/2016
Date
delivered:23/8/2016
In
the matter between:
MFUNDO
REUBEN
GOCINI
Applicant
vs
THE
STATE
Respondent
JUDGMENT
ON APPLICATION FOR LEAVE TO APPEAL
TSHIKI
J:
[1]
On the 1
st
March 2016, the applicant and other accused
were convicted of the following offences:
[1.1]
conspiracy to commit murder;
[1.2]
murder of
Mlungisi
Michael Gwana
;
and
Mr
Francis Msomi
(accused no 5) was found guilty of being an accessory after the fact
of murder of the first deceased
Mlungisi
Michael Gwana
.
[2]
Accused no 2, who is the applicant in the current proceedings was
found guilty of conspiracy to commit murder and murder.
The
applicant was implicated to the offence by the evidence of,
inter
alia
,
Luvuyo Kenneth Kulumani
who told the Court that he
was approached by accused no 1 and the applicant who was accused no 2
in the trial proceedings.
[3]
During cross-examination of the witness
Mr
Kulumani
,
a state witness,
Mr
Skepe
for the applicant, introduced a defence of alibi which in my view did
not assist his client’s case.
Nomathamsanqa
,
a witness whose evidence was also reliable told the Court that the
applicant (accused no 2) and
Nceba
(accused no 1) were given the money by accused no 5, the policeman
who was also found guilty of being an accessory after the fact
of
murder of the first deceased.
[4]
According to
Nceba’s
mother,
Nomathamsanqa
Mirriam Swartbooi
knows the applicant and that the applicant is
Nceba’s
friend.
Nceba
and
applicant (accused no 1 and 2) gave
Nceba’s
mother
a sum of R13 000.00 for safe keeping. On the accepted
evidence in this case, the money in issue was as a result
of the
proceeds of the monies that were taken from the deceased’s
estate after the deceased was murdered by applicant and
his friends.
[5]
The evidence of
Mr
Alfred Erasmus
also corroborated the other evidence that on the 22
nd
November 2011, the applicant could not have been at his work on the
22
nd
November 2011. I, therefore, accepted the evidence of
Mr
Alfred Erasmus
which corroborated the other evidence already led by the state.
Therefore, this Court had rejected the evidence of the applicant
because it was unreliable.
[6]
I am mindful of the discrepancies in the evidence of
Mr Kulumani
.
His evidence cannot be rejected
in toto.
In so far as
the presence of the applicant in the vehicle this Court accepts his
version. That version confirms that the applicant
was in the
company of the people who were in the vehicle of
Mr Kulumani
with a view to murder the deceased in this case which according to
the evidence they did.
[7]
In the result, I am of the view that there are no reasonable
prospects of success in the application by the applicant herein.
[8]
Therefore, the application for leave to appeal is hereby refused.
_________________________
P.W.
TSHIKI
JUDGE
OF THE HIGH COURT
For
the applicant
: Adv E
Skepe
Instructed
by
: Legal
Aid Board South Africa
PORT
ELIZABETH
For
the respondent
: Adv M
Sandan
Instructed
by
:
National Director of Public Prosecutions
PORT
ELIZABETH