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[2015] ZAGPPHC 121
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Shandu v S (CC152/2013) [2015] ZAGPPHC 121 (27 February 2015)
IN
THE HIGH COURT OF SOUTH AFRICA
(GAUTENG
DIVISION, PRETORIA)
CASE
NO:
CC152/2013
DATE:
27 FEBRUARY 2015
In the matter
between:
MZIKAYIZE
MBONGENI
SHANDU
................................................................................
Applicant
and
THE
STATE
........................................................................................................................
Respondent
JUDGMENT - Leave
to Appeal
MAKGOKA. J:
[1] This is an
application for leave to appeal against the sentence of 25 years’
imprisonment for murder and robbery, handed
down by this court on 20
February 2014. The application is opposed by the State.
[2]
The test applicable whether or not to grant leave to appeal, is trite
and well settled. At common law
1
is has always been whether there are reasonable prospects that
another court, given the same set of facts, might arrive to a
different
conclusion. The test was recently restated as follows:
'The
mere possibility that another court might come to a different
conclusion was not sufficient, nor that it would offer solace
to the
applicant to know that the final decision in a serious case would be
given by a court of appeal. See S
v
Swanepoel
1978
(2) SA 410
(A)’.
2
[3]
It is trite that the imposition of sentence is pre-eminently a matter
within the judicious discretion of a trial court. The
appeal court’s
power to interfere with a sentence is circumscribed to instances
where is vitiated by an irregularity, misdirection
or where there is
striking disparity between the sentence and that which the appeal
court would have imposed had it been the trial
court. See generally:
S
v Petkar
1988
(3) SA 571
(A), S
v
Snyder
1982
(2) 694 (A) and S
v
Sadler
2000
(1) SACR 331
(SCA) and Director of Public Prosecutions, KZN v P
2006
(1) SACR 243
(SCA) para 10.
[4] As a result,
after careful, dispassionate and detached regard to the contents of
the notice of application for leave to appeal,
as well as the oral
arguments, I am unable to detect any material misdirection in the
manner in which sentence was considered,
to justify a conclusion that
another court might arrive to a different conclusion. The application
for leave to appeal falls to
fail.
[5] In the result
the following order is made:
1. The applicant’s
application for leave to appeal against the sentence is dismissed.
TM MAKGOKA
JUDGE OF THE HIGH
COURT
1
This
common law test has now been codified in
s 17
of the
Superior Courts
Act, 10 of 2013
.
2
S
v Magadla
2010
(2) SA 316
(E) para 8.