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2024
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[2024] ZAECMKHC 97
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Manzana v S (Application for Leave to Appeal) (CC31/2024) [2024] ZAECMKHC 97 (3 September 2024)
IN THE HIGH COURT OF SOUTH AFRICA
(EASTERN CAPE DIVISION - MAKHANDA)
Case No: CC 31/2024
In the matter between:
SIYABULELA
ANDRIES MANZANA
UNATHI
TSHALI
First
Applicant
Second
Applicant
and
THE
STATE
JUDGMENT
(APPLICATION FOR LEAVE TO APPEAL)
MOLONY
AJ
:
[1]
The applicants in this matter have applied for leave to appeal
against their sentences to a full bench of this division.
[2]
It has been submitted that this court erred in not finding that
substantial and compelling circumstances were present
in regard to
counts 3, 4 and 5. The grounds advanced were the following:
2.1 The
relatively clean records of the applicants.
2.2 The
fact that the applicants spent approximately 14 months in custody
awaiting trial.
2.3 The
applicants co-operated with the police and made full confessions, and
although they initially pleaded not guilty,
they ultimately admitted
to all the allegations against them.
2.4 The
remorse expressed by both applicants through their counsel.
2.5 The
sentences imposed were disproportionate to the applicants’
personal circumstances, the seriousness of the offence
and the
interests of society, and were thus unjust.
[3]
In regard to counts 1, 2, 6 and 7 it was submitted that the sentences
imposed were unduly harsh, and that this court erred
in
over-emphasising the seriousness of the offences, and the interests
of society, and under-emphasising the personal circumstances
of the
applicants.
[4]
The State, in opposing the application for leave to appeal, submitted
inter alia
the following:
4.1 That
all relevant aspects had been carefully considered by the court in
regard to the issue of substantial and compelling
circumstances.
Reference was made to the significant aggravating factors present in
this matter.
4.2 That
the sentences imposed in regard to counts 1 and 2 were appropriate,
as the applicants planned the commission of
the offences and broke
into the property of their employer.
4.5 The
court deviated from the applicable maximum sentences in regard to
counts 6 and 7.
4.6 That
the court applied an element of mercy by ordering that the sentences
in regard to counts 1, 2, 4, 5, 6 and 7 should
run concurrently with
the sentence imposed in regard to count 3. Lesser
sentences would be lenient and disproportionate
to the offences.
4.7 That
the application has no merit and there are no reasonable prospects of
success on appeal, and, furthermore, there
are no compelling reasons
for granting the application for leave to appeal.
[5]
The relevant test in regard to leave to appeal is whether or not the
appeal would have reasonable prospects of success.
In this
regard see the guidance provided in
S
v Smith
2012
(1) SACR 567
(SCA)
at
paragraph 7.
[6]
I am furthermore mindful that when
considering an application for leave to appeal a court should adopt a
holistic approach in evaluating
the evidence before it, and have
regard to the mosaic of proof as a whole.
[7]
I have given careful
consideration to the grounds of appeal advanced.
[8]
These are grounds that were previously raised and considered and,
given the circumstances of this particular matter, I
am not persuaded
that there are reasonable prospects of success on appeal in regard
the sentence imposed.
[9]
The application for leave to appeal to appeal in regard to the
sentences imposed on both applicants is accordingly dismissed.
N MOLONY
ACTING JUDGE OF THE HIGH COURT
Appearances
:
For the State:
Adv Mtsila
instructed by
Deputy Director of Public Prosecutions
MAKHANDA
For the Accused:
Adv Geldenhuys
instructed
by
Legal Aid South Africa
MAKHANDA
Heard on:
03 September 2024
Judgment delivered:
03 September 2024