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[2016] ZAGPPHC 476
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Dlamini v S (CC108/2013) [2016] ZAGPPHC 476 (14 June 2016)
IN
THE HIGH COURT OF SOUTH AFRICA
GAUTENG
DIVISION, PRETORIA
Case
No: CC108/2013
14/6/2016
Reportable:
No
Of
interest to other judges: No
Revised.
In the matter
between:
LUNGELO TSEPISO
DLAMINI
Applicant
and
THE
STATE Respondent
JUDGMENT
FRANCIS J
1. On
5 May 2014, the applicant was convicted of murder read with the
provisions of section 51(1) of Act 105 of 1997 as amended
and with
robbery with aggravating circumstances. On 15 July 2014, the
applicant in respect of the murder charge was sentenced to
25 years
imprisonment and for the robbery charge to 15 years imprisonment. The
sentence imposed on the robbery charge was ordered
to run
concurrently with the sentence imposed on murder and the effective
sentence was 25 years imprisonment. He was automatically
declared
unfit to possess a firearm
2. The
applicant is applying for condonation for the late filing of the
application for leave to appeal and leave to appeal. I am
satisfied
that a proper case has been made out for condonation and condonation
is granted.
3. The
applicant in his application for leave to appeal indicated that he
was applying for leave to appeal against both conviction
and
sentence. I raised this with his counsel whether the application for
leave to appeal was against both conviction and sentencing,
and I was
informed that it relates only to sentencing.
4. The
grounds for leave to appeal against sentence are as follows:
4.1.An effective term of 25 years imprisonment is strikingly
inappropriate and should be reduced.
4.2.The applicant did not waste the court's time and pleaded guilty
to the charges and in doing so showed remorse. He is a first
offender
and is still young and the 25 years imprisonment will destroy his
future
4.3.The purpose of sentence is punishment, retribution,
rehabilitation and deterrence and he requests a reduction of
sentence.
4.4.The situation at his home is not good at all and his sister is
not healthy. No one is working and before conviction and sentencing
they were helping each other and no one will look after his child.
5. It is trite that
the traditional test in deciding whether leave to appeal should be
granted is whether there is a reasonable
prospect that another court
may come to a different conclusion to that reached by me in my
judgment.
6. The
sentence that a court must impose for the murder conviction that the
applicant was found guilty of attracts a minimum sentence
of life
imprisonment unless the court was to find that there are substantial
and compelling circumstances that warrants a different
sentence to
life imprisonment. I had found in my judgment that there are
substantial and compelling circumstances that warrants
a different
sentence to life imprisonment. All the factors that the applicant has
raised in this application for leave to appeal
were considered by me
when I decided to deviate from the prescribed minimum sentence. It is
not necessary to repeat it.
7.
There is in my view, no reasonable prospects that another court will
come to a different conclusion to that reached by me in
sentencing
the applicant to 25 years imprisonment. .
8. The
application for leave to appeal stands to be dismissed.
9. In
the circumstances the following order is made:
9.1.The application for leave to appeal against sentence is
dismissed.
____________________________
FRANCIS J
HIGH COURT JUDGE
GAUTENG LOCAL
DIVISION
FOR APPLICANT:
ADVOCATE F VAN AS OF PRETORIA
JUSTICE CENTRE
FOR
RESPONDENT:
ADVOCATE A J FOURIE OF DPP
DATE OF
HEARING: 14
JUNE 2016
DATE OF
JUDGMENT: 14 JUNE 2016