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2009
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[2009] ZAGPPHC 374
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Thekiso v S (SH62/03, 387/09) [2009] ZAGPPHC 374 (23 November 2009)
IN
THE HIGH COURT OF SOUTH AFRICA
(NORTH
GAUTENG, PRETORIA)
PETITION
NO.: 387/09
CASE
NO.: SH 62/03
DATE
HEARD: 20/10/09
DATE
OF JUDGMENT: 23/11/09
In
the matter between:
ZAKHELE
THEKISO AND 6 OTHERS
and
THE
STATE
JUDGMENT
DU
PLESSIS J:
The
applicant, who was accused 1, appeared with six other accused in the
regional court on one charge of murder, one of attempted
murder and
on three charges of kidnapping. He was convicted on all five charges.
Holding that all the accused acted with a common
purpose, the
applicant s six co-accused were also convicted on all the charges. On
count 1 (murder) the applicant was sentenced
20 years imprisonment,
on count 2 (attempted murder) he was sentenced to 10 years
imprisonment and on each of counts 3, 4 and 5
(kidnapping) 5 years
imprisonment The effective sentence is 45 years imprisonment.
The
applicant sought leave from the trial court to appeal against the
conviction and the sentence Leave was refused. Thereafter
the
applicant petitioned the Judge-President of this division for leave.
The petition came before Legodi J and me. We refused leave
The
applicant has now addressed to the President of the Supreme Court of
Appeal a further petition for leave to appeal. (For the
sake of
convenience I attach a copy of the further petition to this
judgment.) The further petition was sent to the registrar of
this
court and the matter was referred to Van den Heever AJ and me we
treated the further petition as an application for leave
to appeal
against the refusal of the first petition by Legodi and me (See
S
v Khoasasa
2003 (1) SACR 123
(SCA)).
It
was the state's case that the applicant and his co-accused suspected
the deceased in the murder charge of having robbed one of
them
(accused 6) of a cellphone. While walking in a street in Daveytton.
the deceased and his lady friend were accosted by some
of the accused
and forcibly taken into a house. There the deceased and his lady
friend were held captive and the deceased was repeatedly
assaulted,
amongst others by the applicant. The accused also brought a friend of
the deceased into the house. He too was held captive
and assaulted.
The three were taken to another house where they were also held
captive and where the two men were further assaulted
From this house
the two men and the lady were taken to a cemetery. There the
applicant killed the deceased by stabbing him several
times with a
knife. The friend of the deceased was also stabbed and left for dead.
The evidence indicates that the actions of the
seven accused might
have been part of gang-rivalry.
Each
one of the accused testified in his own defence. They admitted to an
incident on the day in question during which the deceased
was
confronted by a number of people and accused of having stolen a
cellphone. The applicant, like most of his co-acused, denied
involvement in the murder, attempted murder and kidnapping. In our
view the learned trail magistrate correctly rejected the evidence
of
the applicant as false beyond reasonable doubt.
In
our view there Is no reasonable prospect that another court will
grant the applicant leave to appeal against his conviction.
Regarding
sentence, the applicant has one previous conviction of being in
possession of an unlicensed firearm At the time of his
conviction he
was […..] years old, unmarried and he had no dependants. The
learned magistrate, rightly in our view, took
into account that the
crimes, the murder and attempted murder in particular, were
exceptionally brutal and involved torturing the
victims and holding
them captive for several hours. The court also took into account that
the applicant was the one who had inflicted
the fatal stab wounds and
did so without any sing of mercy.
The
other accused were effectively sentenced as follows Accused 2 was
sentenced to 30 years imprisonment, accused 3. 4, 6 and 7
was each
sentenced to 25 years imprisonment and accused 5 to 15 years
imprisonment.
While
the Individual sentences of the applicant seem to us to be
appropriate, another court may reasonably hold that the cumulative
effect of the applicant's sentence is inappropriate Another court may
also hold that applicant's sentence is disproportionately
heavy when
compared to the sentences his co-accused received. We conclude that
another court may hold that the applicant should
be granted leave to
appeal against the sentence.
When
we heard the application for leave to appeal, we thought that we
might save considerable time and effort by using this court's
review
power under section
304(4)
of the
Criminal Procedure Act,
51 of 1977
to set aside the trail court's sentence and by
imposing a sentence more in proportion with that of the other accused
I mention
it because I mentioned to the applicant, when he appeared
before us in the application for leave to appeal, the possibility of
this court exercising its review power.
On
reflection we are of the view that it is not In the interests of
justice now to exercise this court's review power. Doing that
might
prejudice the applicant’s right to seek leave to appeal and his
further right, if leave is granted, to have the matter
dealt with on
appeal. We also do not believe that the matter warrants urgent
intervention because, in our view, the applicant will,
even if leave
to appeal is granted and if he succeeds on appeal, still have to
serve a relatively long term of imprisonment.
In
the result the following order is made
1.
Leave is refused to appeal
against this court’s refusal of the applicant's petition for
leave to appeal against the convictions.
2.
The applicant is granted leave to
appeal to the Supreme Court of Appeal against this court s refusal of
his petition for leave to
appeal against the sentence.
B
R DU PLESSIS
JUDGE
OF THE HIGH COURT
I
agree:
B
C VAN DEN HEEVER
ACTING
JUDGE OF THE HIGH COURT