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[2011] ZAFSHC 197
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Dlomo v S (129/2007) [2011] ZAFSHC 197 (8 December 2011)
FREE
STATE HIGH COURT, BLOEMFONTEIN
REPUBLIC
OF SOUTH AFRICA
Case No. : 129/2007
In
the matter between:-
MICHAEL
DLOMO
….................................................................
Applikant
and
THE
STATE
….......................................................................
Respondent
_____________________________________________________
JUDGMENT BY:
MUSI, JP
_____________________________________________________
DELIVERED ON:
8 DECEMBER 2011
_____________________________________________________
[1]
This is an application for leave to appeal against sentence only. The
application was brought out of time and accordingly the
applicant
applied for condonation simultaneously with the instant application.
The reason for the delay is that the applicant needed
legal
assistance for which he needed funds. When his family could not raise
funds he approached Legal Aid SA but by the time they
allocated a
lawyer to him the period within which the application should have
been brought, had expired. Given that the applicant
is in jail I
consider his explanation to be reasonable and I would accordingly
grant condonation.
[2]
The judge who convicted and sentenced the applicant (Beckley J) has
since retired and unavailable and the matter was accordingly
referred
to me. I adopted a rather unusual procedure, where I directed that
heads of argument be filed dealing with the only issue
that needs to
be canvassed at this stage, namely, whether there are reasonable
prospects of success on appeal. I indicated that
once the heads have
been filed by all the parties I would deal with the matter in
chambers and provide the parties with a written
decision. I referred
the parties to the judgment in
LAW SOCIETY, THE NORTHERN
PROVINCES v MOGAMI AND OTHERS
2010 (1) SA 186
(SCA), para 3.
I indicated that if any of the parties was not happy with this
procedure they should say so but none objected and
the heads of
argument were duly filed as requested.
[3]
The applicant was charged with the murder of his wife, Nunu Maria
Motloung, committed on 17 February 2007 in Deneysville. He
pleaded
guilty and was duly convicted as charged. He was sentenced to 18
(eighteen) years imprisonment.
[4]
It is trite that sentence is a matter within the discretion of the
trial court and that a court of appeal will only interfere
therewith
if the sentence is shockingly inappropriate or it is vitiated by
misdirection or irregularity. The only ground of appeal
advanced on
behalf of the applicant is that the trial court overemphasised the
seriousness of the offence and did not take sufficient
account of the
mitigating factors. However, a perusal of the judgment of Beckley J
on sentence demonstrates that he considered
all the factors relative
to sentence. Given the nature and gravity of the offence and the
brutality with which it was committed,
it can hardly be said that the
sentence imposed is shockingly inappropriate. I conclude that there
are no reasonable prospects
of success on appeal.
[5]
The application is dismissed.
____________
H.M. MUSI, JP
On behalf of the
applicant: Attorney K. Pretorius
Instructed
by:
Legal
Aid SA
BLOEMFONTEIN
On
behalf of the respondent: Adv. R. Hoffman
Instructed
by:
The
Director: Public Prosecutions
BLOEMFONTEIN
/eb