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South Africa: Eastern Cape High Court, Port Elizabeth
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[2019] ZAECPEHC 69
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Gana v S (CC34/2010) [2019] ZAECPEHC 69 (29 October 2019)
IN
THE HIGH COURT OF SOUTH AFRICA
EASTERN
CAPE DIVISION - PORT ELIZABEH
Case
No.: CC34/2010
In
the matter between:
XOLANI
EDWARD
GANA
Applicant
and
THE
STATE
Respondent
JUDGMENT
SMITH
J:
[1]
The applicant applies for leave to
appeal against both his conviction and sentence. He also applies for
condonation for his late
filing of the application.
[2]
He was convicted of murder, armed
robbery with aggravating circumstances, and unlawful possession of a
fire-arm and ammunition,
on 18 November 2010. The following day,
namely 19 November 2010, he was sentenced as follows:
a)
In respect of the murder count, to life
imprisonment;
b)
In respect of the armed robbery count,
to 15 years' imprisonment;
c)
For unlawful possession of a fire-arm,
to 4 years' imprisonment; and
d)
For unlawful possession of ammunition,
to 1 year imprisonment .
[3]
His application for condonation was
supported by an affidavit wherein he explained the reasons for the
delay. The State did not
oppose the application and, being satisfied
that good cause had been shown, I granted the application.
[4]
Ms Theron, who appeared for the
applicant, argued that there are reasonable prospects that another
court may find that the conclusion
drawn from the circumstantial
evidence, was not the only reasonable one.
[5]
I have given extensive reasons in my
judgment for my finding that the circumstantial evidence adduced by
the State was overwhelming
and compelling. The applicant's version,
on the other hand, was contrived and improbable. This much is
abundantly evident
from my summary of the evidence. He
was, by way of example, unable to provide a coherent and reasonable
explanation
for his presence at the crime scene and in the
hijacked motor vehicle, as well as for his fingerprints on the
passenger side
when, on his version, he was driving the vehicle.
There were also numerous other discrepancies and improbabilities in
his testimony
which justified the finding that his version
could not be reasonably possibly true and that it was false, beyond
reasonable
doubt.
[6]
The other inferences which were
proffered by his counsel were fanciful and farfetched. I
am accordingly
of the view that there are no
reasonable prospects that another court will accept his version as
being reasonably possibly
true. In my view the proved facts
compelled, as the only reasonable inference, that he was complicit in
the commission of
the crimes and that he was acting in common purpose
with other unknown co-perpetrators. In my view it is unlikely
that
another court will be convinced that
there is any other reasonable inference that can be drawn from
those
facts.
[7]
I am similarly of the view that there
are no prospects of another court interfering with the sentence of
life imprisonment in respect
of the murder count. The applicant's
intended appeal is against that sentence only. The applicant was
unable to establish any substantial
and compelling circumstances
which could have justified the imposition of a lighter sentence.
[8]
I am accordingly of the view that there
are no reasonable prospects of success on appeal, both in respect of
the convictions
and sentence.
In
the result the application for leave to appeal is refused.
Smith
J
Judge
of the High Court
Appearances
:
For
the applicant: Adv E Theron, instructed by Legal Aid.
For
the respondent: Adv M Stander, instructed
by National Director of Public Prosecutions.
Date
heard: 23
October 2019
Date
delivered: 29
October 2019