S v Lumkwana (K/S 15/00) [2006] ZANCHC 90 (1 June 2006)

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[2006] ZANCHC 90
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S v Lumkwana (K/S 15/00) [2006] ZANCHC 90 (1 June 2006)

Reportable: Yes /
No
Circulate to
Judges: Yes / No
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to Magistrates: Yes / No
IN
THE HIGH COURT OF SOUTH AFRICA
(Northern Cape Division)
Case
no: K/S 15/00
Dateheard: 15/06/2006
Date delivered:
In
the matter of
:
SAMUEL
T. LUMKWANA APPELLANT
versus
THE
STATE RESPONDENT
Coram:
MOKGOHLOA
AJ
JUDGMENT
MOKGOHLOA
AJ:
The two accuseds
appeared before this Court sitted at De Aar on five counts of
assault and one count of rape. Both accuseds were
represented.
Before the State closed its case the accuseds changed their plea on
a charge of rape from not guilty to guilty.
The accuseds were
then acquitted on all five counts of assault and convicted on a
charge of rape and sentenced on the 8
th
June 2000 to 14 (fourteen) years imprisonment each.
Only one of the
accuseds, Mr Samuel Thembeni Lumkwana, who was Accused 1 at the
trial (henceforth “
the
appellant
”)
seeks leave to appeal against both conviction and sentence.
The appellant’s
grounds for leave to appeal fashioned by himself and dated the 6
th
February 2006 are as follows:
AD
CONVICTION
3.1
That
the Court failed to take into consideration that he cooperated with
the investigating officer and also the State;
3.2
That
the State failed to prove its case beyond reasonable doubt;
AD
SENTENCE
3.3
That
the Honourable Judge erred in having overemphasized the seriousness
of the crime over his personal circumstances;
3.4
That
the Honourable Judge misdirected himself by not taking into account
the fact that he was a first offender;
3.5
That
the sentence is shockingly excessive and therefore inappropriate in
the circumstances.
THE APPEAL
AGAINST CONVICTION
The
appellant did not make any mention of his change of plea from not
guilty to guilty. He changed his plea just before the State
closed
its case. His plea then removed all doubt if any that the
Honourable Judge may have to the evidence of the state and

confirmed or strengthened the State’s case.
THE APPEAL
ON SENTENCE
The Honourable
Judge found that there were substantial and compelling
circumstances that persuaded him to impose a lesser sentence
than
the prescribed life imprisonment. The appellant’s age, the fact
that he was under the influence of liquer at the time
of the
commission of the crime; he was not armed and that the victim did
not suffer serious bodily injuries. He was further a
first
offender.
In an
application for leave to appeal the appellant must satisfy the Court
that he has reasonable prospects of success on appeal.
It is clear
to me from the appellant’s grounds for leave to appeal that this
is a case where absolutely no chance of a succesful
appeal exist
and I am certain beyond reasonable doubt that the appeal will fail.
ORDER:
Leave
to appeal on both conviction and sentence is refused.
____________________
FE
MOKGOHLOA
ACTING
JUDGE
For the
Appellant: Adv. Cloete Instructed by the Legal Aid Board
For the Respondent: Adv.
Bagananeng, Office of the Director of Public Prosecution