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[2006] ZANCHC 40
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S v Moshane (K/S 29/05) [2006] ZANCHC 40 (8 August 2006)
Reportable: Yes /
No
Circulate to
Judges: Yes / No
Circulate
to Magistrates: Yes / No
IN THE HIGH COURT
OF SOUTH AFRICA
(Northern
Cape Division)
Case
no: K/S 29/05
Date
heard: 8 August 2006
Date
delivered: 8 August 2006
In
the matter between:
MOSES TUTU MOSHANE APPELLANT
and
THE STATE RESPONDENT
JUDGMENT:
APPLICATION FOR LEAVE TO APPEAL
Molwantwa
A J:
This is an application for
leave to appeal lodged on 5 August 2005 against my judgment
delivered on 2 August 2005.The appellant
pleaded guilty on 2 August
2005 and was convicted on his plea on the same day. He was
sentenced to 15 years imprisonment.
This intended appeal is against
both conviction and sentence.
Ms Segone, instructed by
Justice Centre represented the appellant during the trial on 2
August 2005. She is again representing the
appellant in this
application. She has submitted Heads of Argument on 7 August 2006 in
which she conceded that both the conviction
and the sentence were in
order. There is nothing before me that indicates that the appellant
has abandoned his appeal in any way.
The appellantâs grounds of
appeal boil down to the following:
3.1 That the Court erred by not
taking into account the discrepancies in the evidence of the
complainant and other state witness.
(Which did not have happen as
the appellant
3.2 That the Court did not take
into account compelling and substantial circumstances existing in his
case. (which the court did
take into account).
4. The appellant was charged
with rape of a thirteen year old girl. He pleaded guilty .In a
statement handed in as exhibit during
the trial he admitted all the
elements of the offence. I was satisfied that he understood the
charge preferred against him and the
contents of the statement as
read back to him. He confirmed the same. I convicted him as charged.
As prescribed by section 51(1)
read with (2) and (3) Act 105 of 1997 (Criminal Law Amendment Act),I
found compelling and substantial
circumstances existing and imposed
fifteen years imprisonment instead of life imprisonment.
I have been assured by Ms
Segone that she consulted with the appellant in prison. She
explained the process which unfolds during
a guilty plea and the
prescribed provision of Act 105 of 1997.
None of the grounds have
substained if I have erred it is on the side of leniency. For the
aforegoing reasons, it would be superfluous
to deal with any other
matter in the judgment, be that the conviction or the sentence. See
S v Sikosana
1980 (4) S A 559
(A) at 562 H-563 B whereat
Diemont
J A
stated:
â
Once the trial Judge has firmly come to the
conclusion that the State has proved the guilt of the accused beyond
all reasonable doubt
he must proceed to reconsider the case from an
objective standpoint and ask himself whether there is not a
reasonable prospect that
another Court might come to a different
conclusion. If he decides to refuse the application he must give his
reasons (see s 316 (6)
of Act 51 of 1977). It may be that his reasons
for his refusal will appear from the reasons for convicting (R v
White
1952 (2) SA 538
(A) at 540) but where he decides to grant the
application his reasons for so doing are less likely to be found in
his judgment.
It is important in such case that he should state
concisely his reasons for allowing the application unless they
otherwise appear
clearly from the record. Moreover, when leave is
granted the leave may be limited so as to allow only particular
grounds of appeal
to be advanced, or leave may be granted generally
so that all the issues may be canvassed - see the remarks of
SCHREINER JA in R
v Jantjies
1958 (2) SA 273
(A) at 275.â
The applicantâs legal
representative Ms Segone, instructed by the Justice Centre, could
point to no misdirection and I have discerned
none. In all the
circumstances the application has no merits.
ORDER
The application for leave to
appeal is dismissed.
______________
B C MOLWANTWA
Acting Judge
Northern
Cape Division
On behalf of the
Appellant: Ms B Segone
On behalf of the
Respondent: Advocate M G W Baganeneng