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[2011] ZAFSHC 166
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Nkomo v S (A150/2011) [2011] ZAFSHC 166 (24 October 2011)
FREE STATE HIGH
COURT, BLOEMFONTEIN
REPUBLIC OF SOUTH
AFRICA
Case No. : A150/2011
In
the matter between:-
MTHANDEKI
KLEINBOOI NKOMO
…......................................
Appellant
versus
THE
STATE
….......................................................................
Respondent
_____________________________________________________
CORAM:
KRUGER
et
MOLEMELA,
JJ
_____________________________________________________
JUDGMENT
BY:
KRUGER, J
_____________________________________________________
HEARD
ON:
24 OCTOBER 2011
_____________________________________________________
DELIVERED ON:
24 OCTOBER 2011
_____________________________________________________
[1] The accused applies
for leave to appeal against our judgment of 5 September 2011
dismissing his application to lead further
evidence and his appeal.
[2] The application to
lead further evidence was made under section 22 of the Supreme Court
Act 59 of 1959. The accused could not
employ section 316(5) of Act 5
of 1977 because such application can only be brought together with an
application for leave to appeal
directed at the presiding officer at
the trial, and the envisaged evidence was not to hand at that stage,
but was only received
later.
[3] On the merits the
complainant was a single witness on the allegations relating to the
charge and she did not report the incident
immediately.
[4] We are of the view
that there are reasonable prospects that another court can come to a
different conclusion, both on the merits
and the request that the
matter be remitted to the regional court for the hearing of further
evidence.
ORDER
The accused is granted
leave to appeal to the Supreme Court of Appeal against the whole of
our judgment of 5 September 2011 including
our dismissal of the
appeal and appellant’s request that the matter be remitted to
the regional court for the hearing of
further evidence.
__________
A. KRUGER
I
agree
_______________
M.B. MOLEMELA
On
behalf of appellant: Adv J I Nel
Instructed
by:
Azar
Havenga Attorneys
BLOEMFONTEIN
On
behalf of the respondent: Adv S Giorgi
Instructed by:
Director Public
Prosecutions
BLOEMFONTEIN
/sp/wm