Mayedwa v S (CC7/2019) [2021] ZAECBHC 12 (10 August 2021)

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[2021] ZAECBHC 12
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Mayedwa v S (CC7/2019) [2021] ZAECBHC 12 (10 August 2021)

NOT
REPORTABLE
IN
THE HIGH COURT OF SOUTH AFRICA
(EASTERN
CAPE LOCAL DIVISION, BHISHO)
Case
No. CC7/2019
In
the matter between:
XOLA
MAYEDWA

Applicant
and
THE STATE

Respondent
JUDGMENT IN
RESPECT OF APPLICATION FOR LEAVE TO APPEAL
HARTLE
J
[1]
The applicant seeks leave to appeal against both his conviction and
sentence.
[2]
At the outset I granted a request to condone the late filing of the
application
as it was evident even at the time I handed down sentence
that the applicant was not satisfied that he had been fairly
convicted.
Ms. Jodwana-Blayi for the state did not oppose the
application.
[3]
The grounds of the application and the basis upon which the state
opposes
the application are set out fully in the notice of motion and
notice to appeal respectively.  I do not intend to repeat those
arguments.
[4]
In a nutshell it was contended on the applicant’s behalf that I
erred
in finding that his guilt had been proven beyond reasonable
doubt and that I ignored crucial contradictions and placed dependence
on the evidence of one of the children’s grandmother whereas her
evidence was neither reliable nor satisfactory.  However,
I
dealt with these contradictions in my judgment and especially
remarked that they were non-material.  I did not focus
especially
on the tenor of the grandmother’s evidence, but a review
of her evidence confirms in my view that any shortcomings in her
account
do not detract from the reliable firsthand accounts of the
primary witnesses whose testimony conformed to what I called the
“essential
narrative”.  Their evidence further make sense,
was entirely probable, and corroboration was to be found in the seven
sources
I highlight in my judgment.
[5]
I am accordingly satisfied that there are no reasonable prospects of
success
on appeal against the conviction.
[6]
As for sentence, however, although not raised as a direct ground but
one
which concerns itself with the argument that I erred in finding
that cumulatively the factors which were placed before me in
mitigation
did not constitute substantial and compelling
circumstances, it appears that I perhaps failed to consider the
reduced moral blameworthiness
of the applicant on account of his
state of intoxication.  Each of the girls confirmed in their
testimony that the applicant
was drunk, even on the following day.
[7]
I cannot therefore ignore the prospect that another court may well
find
that this factor, coupled with the applicant’s age and his
clean record cumulatively mitigate for him, thus rendering the
sentence
of life imprisonment inappropriate.
[8]
In the result I issue the following order:
1.
The applicant is granted leave to the Full Bench of this court to
appeal against the sentence of life imprisonment
imposed upon him by
this court on 20 January 2021.
B
HARTLE
JUDGE
OF THE HIGH COURT
DATE
OF HEARING:
22 July 2021
DATE
OF JUDGMENT:          10
August 2021*
*Judgement
delivered electronically to the parties by email on this date.
APPEARANCES
:
For
the applicant:   Ms. Mtini of Legal Aid, King William’s
Town.
For
the respondent: Ms Jodwana-Blayi of the Director of Public
Prosecutions, Bhisho. .