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[2014] ZANCHC 21
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Phokoje v S (K/S 18/2013) [2014] ZANCHC 21 (8 March 2014)
IN THE HIGH COURT OF
SOUTH AFRICA
(NORTERN CAPE DIVISION,
KIMBERLEY)
Case No K/S 18/2013
DATE: 08 MARCH 2014
In the matter between
JOSEPH MOSIMANEGAPE
PHOKOJE
.......................................................................
APPLICANT
And
THE
STATE
....................................................................................................................
RESPONDENT
JUDGMENT ON APPLICATION
FOR LEAVE TO APPEAL
PAKATI J
Heard on: 26/02/2014
Delivered on: 08/03/2014
1. The applicant, Mosimanegape Phokoje,
and Neo Elliot Mckenzie (the applicant’s co-accused) pleaded
guilty to murder read
with the provisions of
s51
of the
Criminal Law
Amendment Act, 105 of 1997
. On 19 November 2013 I convicted them and
they were sentenced on 22 November 2013 to life imprisonment. The
applicant now applies
for leave to appeal against his sentence. He is
represented by Mr D Van Tonder on the instructions of the Legal Aid
South Africa.
2. In his notice of appeal filed on 06
December 2013 the applicant recorded the following grounds:
2.1 That I erred in finding that there
were no substantial and compelling circumstances present to justify
the imposition of a lesser
sentence;
2.2 That there exist good prospects of
rehabilitation by the applicant due to his youthfulness. He is a
first offender and showed
remorse by pleading guilty to the charge;
2.3 That he co-operated with the police
and made a confession to a magistrate which is indicative of true
remorse;
2.4 That the murder was not
pre-meditated;
2.5 That the applicant was under the
influence of alcohol and drugs at the time the offence was committed;
2.6 That he passed grade 12 at school
and is unmarried;
2.7 That he spent 11 months [in
detention] awaiting trial; and
2.8 That the abovementioned
circumstances cumulatively amount to substantial and compelling
circumstances that warrant the imposition
of a lesser sentence.
3. In passing sentence I considered the
personal circumstances of the applicant as against the aggravating
factors. The aggravating
factors far outweighed his personal
circumstances. I reiterate what I mentioned when I imposed sentence
that the offence that the
applicant was convicted of was serious. The
deceased was unarmed and posed no threat as he was fleeing. It is
important to note
that the applicant chased after the deceased when
he fled the scene and stabbed him again even though he had already
been seriously
injured by the applicant and his co-accused. The
evidence clearly showed that the applicant acted in the furtherance
of a common
purpose with his co-accused.
4. In my view there are no prospects of
success on appeal. There is also no possibility that another court
may arrive at a different
decision.
ORDER
The application for leave to appeal
is dismissed.
BM PAKATI
JUDGE
On behalf of the Applicant: Mr D.
Van Tonder
Instructed by: Legal Aid Board,
Kimberley.
On behalf of the Respondent: Adv C.
Jansen
Instructed by: Director of Public
Prosecutions