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[2012] ZAWCHC 274
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Chulayo v S (A172/2012) [2012] ZAWCHC 274 (14 June 2012)
IN THE HIGH COURT OF SOUTH
AFRICA
(WESTERN CAPE HIGH COURT, CAPE
TOWN)
CASE
NO:
A172/2012
DATE:
14 JUNE 2012
In the matter between:
LUYANPA
CHULAYO
..............................................................................
Appellant
and
THE STATE
.........................................................................................
Respondent
JUDGMENT
VELDHUIZEN.
J
:
This matter came before us on
appeal and on 16 April this year, this Court upheld the appellant’s
appeal against his conviction
on murder and changed the conviction
to one of guilty of culpable homicide. In the light thereof the
sentence was also set aside
and replaced with a sentence of 5 yeairs
imprisonment in terms of section 276(1 )(i) of the
Criminal
Procedure Act, 51 of 1977
.
Today
there is before us an application
for leave to appeal to the Supreme Court of Appeal against this
Court’s judgment and the
application is directed against both
the conviction and the sentence.
We have
again considered the matter and, in my view, there is no prospect
that another court will come to a difference conclusion
as far as
the conviction of culpable homicide is concerned.
Mr Avontuur for the applicant
argued that, instead of this court imposing the sentence, we should
rather have referred the matter
back to the trial court to consider
sentence afresh after considering a probation officer's report as to
the desirability of
imposing a sentence of correctional supervision.
We had
before us a report and we had all the facts which were pertinent to
the consideration of the appropriate sentence. In the
circumstance,
I see no reason why the matter should have been referred back to the
trial court to consider sentence afresh. In
my view, there is no
prospect that another court will come to a different conclusion, in
the result
THE
APPLICATION FOR LEAVE TO APPEAL IS
DISMISSED.
VELDHUIZEN, J
I agree
GANGEN, AJ