About SAFLII
Databases
Search
Terms of Use
RSS Feeds
South Africa: High Court, Northern Cape Division, Kimberley
SAFLII
>>
Databases
>>
South Africa: High Court, Northern Cape Division, Kimberley
>>
2024
>>
[2024] ZANCHC 82
|
|
Mondzinger v S (Leave to Appeal) (K/S26/2022) [2024] ZANCHC 82 (16 August 2024)
IN
THE HIGH COURT OF SOUTH AFRICA
NORTHERN CAPE
DIVISION, KIMBERLEY
Case No: K/S26/2022
Reportable: YES /
NO
Circulate to Judges: YES
/ NO
Circulate to Magistrates:
YES / NO
Circulate to Regional
Magistrates: YES / NO
In
the matter between:
THYS
MONDZINGER
APPLICANT
and
THE
STATE
RESPONDENT
Heard on:
Decided on the papers
Delivered on:
16/08/2024
Summary:
This is the application for leave to
appeal against sentence. The applicant was convicted and
sentenced to life imprisonment
having been found guilty of murder
read with s 51(1) of Act 105 of 1997.
ORDER
(a)
The application for leave to appeal is dismissed.
JUDGMENT: APPLICATION
FOR LEAVE TO APPEAL
MAMOSEBO
J
[1]
The applicant is seeking leave to appeal against sentence only. This
application is
determined on the papers. He was sentenced to life
imprisonment on 31 October 2023 having been convicted of murder read
with
s 51(1)
of the
Criminal Law Amendment Act 105 of 1997
. The State
is opposing the application.
[2]
Application for leave to appeal is governed by
s 17
of the
Superior
Courts Act 10 of 2013
. It is unclear in this application whether
leave is sought in terms of
s 17(1)(a)(i)
which requires that
prospects of success exist on appeal or
s 17(1)(a)(ii)
that there is
some compelling reason why the appeal should be heard.
[3]
This is what appears in the Notice under the head: Application for
leave to appeal
in terms of
s 309B
of the
Criminal Procedure Act 51
of 1977
as amended:
‘
Be
pleased to take notice hereof, that applicant intends to bring an
application on, a date to be determined by the registrar, for
leave
to appeal against sentence because there are good and reasonable
prospects of success and another court would come to a different
conclusion upon considering the grounds of appeal. The decision
sought to be appealed against involves an important question of
law
and that the administration of justice requires the appeal to be
heard. There is a compelling reason for the proposed appeal
[to] be
heard.’
[4]
These are the grounds appearing in the Notice of Appeal:
(a)
There was emotional stress preceding the
act of killing;
(b)
There was emotional struggle of dealing
with the history of infidelity and lack of honesty by the fiancé
which constituted
substantial and compelling circumstances;
(c)
Accused was under serious provocation and
experienced extreme hurt and anger caused by the deceased’s
infidelity;
(d)
The time spent in custody as an awaiting
trial prisoner justify a deviation from the period of life
imprisonment for the murder
of the deceased; and
(e)
Section 51(1)
does not require [a] court to
impose a sentence of life imprisonment where it would be inconsistent
with the offender’s right
guaranteed by s 12(1)(e) of the
Constitution.
[5]
Evidently, the applicant is raising new facts and arguing evidence
that was not heard
during the trial. Points a, b, c, and e are, in my
view, evidence that cannot be relied on at this stage for purpose of
seeking
leave to appeal his sentence. All the witnesses who testified
at the trial were cross-examined at length and the version of the
applicant was also put to them in rebuttal. It is too late to try to
introduce new evidence at this stage. Consequently, I will
only deal
with the period of incarceration while awaiting trial.
[6]
The test to determine whether leave to appeal should be granted or
not is trite. The
Supreme Court of Appeal in
Ramakatsa
and Others v African National Congress and Another
[1]
made these insightful remarks:
‘
[10]
Turning the focus to the relevant provisions of the
Superior Courts
Act (the
SC Act), leave to appeal may only be granted where the
judges concerned are of the opinion that the appeal would have a
reasonable
prospect of success or there are compelling reasons which
exist why the appeal should be heard such as the interests of
justice.
This Court in Caratco, concerning the provisions of s
17(1)(a)(ii) of the SC Act pointed out that if the court is
unpersuaded that
there are prospects of success, it must still
enquire into whether there is a compelling reason to entertain the
appeal. Compelling
reason would of course include an important
question of law or a discreet issue of public importance that will
have an effect on
future disputes. However, this Court correctly
added that ‘but here too the merits remain vitally important
and are often
decisive’. I am mindful of the decisions at
high court level debating whether the use of the word ‘would’
as opposed to ‘could’ possibly means that the threshold
for granting the appeal has been raised. If a reasonable prospect
of
success is established, leave to appeal should be granted. Similarly,
if there are some other compelling reasons why the appeal
should be
heard, leave to appeal should be granted. The test of reasonable
prospects of success postulates a dispassionate decision
based on the
facts and the law that a court of appeal could reasonably arrive at a
conclusion different to that of the trial court.
In other words, the
appellants in this matter need to convince this Court on proper
grounds that they have prospects of success
on appeal. Those
prospects of success must not be remote, but there must exist a
reasonable chance of succeeding. A sound rational
basis for the
conclusion that there are prospects of success must be shown to
exist.’
See also
Caratco (Pty)
LTD v Independent Advisory (Pty) LTD
2020 (5) SA 35
(SCA) para 2.
[7]
The applicant’s reliance on the period of incarceration as a
substantial and
compelling circumstance under these circumstances is
unmeritorious. The applicant stabbed a 34-week pregnant woman
indiscriminately,
having earlier that morning taken her to the
Magistrates Court in an effort to coerce her to withdraw the
protection order against
him. That did not happen. I said in the main
judgment that this was no ordinary murder but a femicide. The death
of the unborn
child was considered in sentencing because it is an
aggravating factor. The applicant was acutely aware of the pregnancy.
I stated
that, until Parliament prioritises the killing of unborn
foetuses as a criminal offence, the trajectory on gender-based
violence
on women and children, in this instance a foetus, will
continue to be downplayed by the perpetrators. The applicant was
incarcerated
for a period of 10 months awaiting trial. He now seeks
to amplify the 10-months period as weighty enough to justify a
reduced sentence.
[8]
I am not persuaded that life imprisonment is inappropriate. Regard
being had to the
submissions made pertaining to this application for
leave to appeal in order to determine whether there are reasonable
prospects
that another court would come to a different finding than
this court had reached, I have not found any. I am not persuaded of
any
cognisable prospects of success or compelling reasons that
warrant the attention of the SCA or the Full Court of this Division.
I am therefore satisfied that there are no reasonable prospects of a
successful appeal. In the result application for leave to
appeal to
the Supreme Court of Appeal alternatively, to the Full Bench of this
Division, must fail.
[9]
In the result the following order is made:
The
application for leave to appeal is dismissed.
MC MAMOSEBO
JUDGE OF THE HIGH
COURT
NORTHERN CAPE
DIVISION, KIMBERLEY
For the Applicant:
Adv. JP Moeti
Instructed by:
Justice Centre,
Kimberley (Judicare)
For the State:
Adv. MA Engelbrecht
Instructed by:
The Director Public
Prosecutions
[1]
Ramakatsa
and Others v African National Congress and Another (724/2019)
[2021]
ZASCA 31
(31 March 2021 at para 10