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[2021] ZAGPPHC 226
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Makobe v S (CC103/2011) [2021] ZAGPPHC 226 (15 April 2021)
IN
THE HIGH COURT OF SOUTH AFRICA
(GAUTENG DIVISION, PRETORIA)
(1)
REPORTABLE: NO
(2)
OF INTEREST TO OTHERS JUDGES: NO
(3)
REVISED
Case number:
CC103/2011
In the matter between:
MAKOBE,
JOHN NARE
APPLICANT
(ACCUSED NO 2 IN THE COURT
A
QUO)
And
THE
STATE
RESPONDENT
APPLICATION FOR LEAVE TO
APPEAL
BASSON
J,
[1]
This is an application for leave to appeal lodged by the applicant
(accused no 2 in the court
a quo
) against his conviction and
sentence. Webster, J presided over the matter in the court
a quo
.
[2]
Accused no 1 and 2 (the present applicant) were charged with the
following four accounts:
Count
1: Housebreaking with the intent to rob and robbery with aggravating
circumstances as defined in section 1 of Act 51 of 1977.
Count 2:
Murder read with the provisions of section 51(1) of Act 105 of 1997.
Count
3: Contravention of
section 3 of Act 60 of 2000, that is the unlawful possession
of a
firearm, without being the holder of a licence to possess such
firearm.
Count
4: Contravention of section 90 of Act 60 of 2000, that is unlawful
possession of ammunition without being the holder of a
licensed
firearm, capable of firing such ammunition.
[3]
This case emanated from an incident on the night of 10-11 February
2011 when two intruders entered a house and shot and killed the
deceased. During the robbery various items were also stolen. After
summarising the facts, the court
a quo
tied accused no 1 to
the crime scene by virtue of his palm print that was lifted from the
scene of the crime. The court was satisfied
that accused no 1 was
positively linked to the crime scene. Two pieces of evidence linked
accused no 2 to the scene of the crime.
The first was a cellular
phone that was allegedly sold by him for R500.00 and the second was a
firearm that was found to have fired
one of the bullets that were
found in the deceased’s house. The court evaluated the evidence
in totality and concluded that
it had no hesitation in rejecting the
versions presented by the two accused to the court as being totally
untrue.
[4]
Both accused were found guilty on all counts. On 18 January 2013
the
court imposed in respect of count 1 imprisonment of 20 years; count 2
life imprisonment; count 3 imprisonment of 10 years;
and count 4
imprisonment of 5 years. The sentences on counts 1, 3 and 4 were
ordered to run concurrently with the sentence on count
2.
[5]
Accused no 1 applied for leave to appeal in 2014 and on 15 March
2014, Webster, J refused leave to appeal. Accused no 1 unsuccessfully
petitioned to the SCA.
[6]
The applicant (accused no 2) now, after six years, claims that the
court
a quo
erred in finding him guilty beyond reasonable
doubt. He also now claims that the court erred in the imposition of
sentence and
that there exist compelling and substantial
circumstances justifying a lesser sentence.
[7]
The delay in this application for leave to appeal is extraordinary
and there is no explanation before the court for this delay. The
application for leave to appeal should therefore be dismissed
on this
basis alone. However, even if condonation was to be granted, the
application for leave to appeal is dismissed on the grounds
that
there are no reasonable prospects of success and there is no other
compelling reason why the appeal should be heard. The court
a quo
thoroughly evaluated all the evidence and the considerations that
should be taken into account in imposing an appropriate sentence.
Order
[8]
The application for leave to appeal against conviction and sentence
is dismissed.
A.C.
BASSON
JUDGE OF THE HIGH COURT
GAUTENG DIVISION OF THE HIGH
COURT, PRETORIA
Electronically submitted
therefore unsigned
Delivered: This judgment
was prepared and authored by the Judge whose name is reflected and is
handed down electronically
by circulation to the Parties/their legal
representatives by email. The date for hand-down is deemed to
be 15 April 2021.
Case
number
: CC103/2011
Matter
heard on
: 14
April 2021 via MS Teams
For
the Applicant
: Adv M
Moloi
Instructed
by
: Legal Aid of
South Africa
For
the Respondent/State
: Adv K Mashile
Instructed
by
: Director of Public
Prosecutions
Date
of Judgment
: 15 April 2021