IN THE HIGH COURT OF SOUTH AFRICA 
(WESTERN CAPE HIGH COURT, CAPE TOWN)

CASE NUMBER: A300/2008

DATE: 3 SEPTEMBER 2010

In the matter between: 

and

JUDGMENT

BINNS-WARD. J:

By reason of the provisions of section 309 of the Criminal Procedure Act, in particular the first proviso to section 309(1)(a) of that act, the appellants enjoyed a right of appeal to this court without the need to obtain leave from the trial court for that purpose. Section 309(2) of the Criminal Procedure Act provides:

"An appeal under this section shall be noted and be prosecuted within the period and in the manner prescribed by the rules of court, provided that the magistrate against whose decision or order the appeal is to be noted, or of he or she is unavailable, any other magistrate of the court concerned, may, on application and on good cause shown, extend such period."
In this matter it is clear from the record that both the trial magistrate and the appellants' counsel at trial were aware of their right to appeal, but it is evident on the record that there was some confusion as to how matters in that regard should be taken forward. That confusion no doubt arose from the fact that the relevant rule of court, being Rule 67 of the Magistrate's Court Rules, was not appropriately amended to give effect to the statutory amendments until sub-Rule 5A was introduced in terms of General Notice 517 of 2009, which was published only on 8 May 2009.

In the circumstances it seems appropriate to treat the document filed of record and drawn, according to its teno^ as^ an application for leave to appeal, as a notice of appeal in terms of the regulations as eventually promulgated. The grounds of appeal set out in that document make it apparent that the appeal is directed only against the sentences imposed; and in particular only against the life sentence handed down in respect of the murder count. Those grounds are that the magistrate did not give due consideration to the fact that the applicants were first time offenders, that the applicants were only 19 years old at the time, still attending school at the time of committing the offence, that the magistrate  erred  in  over-emphasising  the  interest  of  the community and the seriousness of the crime.

It is alleged that the magistrate did not give due consideration to the element of mercy to be afforded to the applicants and gave the element of retribution too much weight and consideration. It averred that the term of imprisonment adduced a sense of shock and that too much emphasis was placed on retribution and deterrence. Those provisions appear to pertain only in respect of appellant number 2, but no doubt essentially the same assertions were urged in respect of appellant number 1.

The evidence shows that the deceased was known to the appellants, although it gives no indication that they would have had any basis to act against him in this entirely unacceptable manner. The evidence also shows that the appellants were known to the complainant on the count of attempted murder, and the evidence indicates that it is clear that it is only fortuitous that the complainant on the attempted murder count, survived this incident. It is obvious that the assault on her, also by firing at her with the firearm, was undertaken with the deliberate intention of killing her, no doubt to try to facilitate that no identifying evidence would be available against the appellants thereafter.

The magistrate took into account the appellants' personal circumstances. She was conscious of their relative youth, but she was also rightly conscious that that factor, as well as the fact that they had no reported previous convictions, could not be seen in isolation and had to be adjudged against the circumstances of the offence and the interests of the community.    It does not need repeating how ravaged this country is by serious and violent crime and the current matter is an incident of one of the worst kinds of perpetration of that type of crime.