In the matter between:

and

JUDGMENT 
Application for Leave to Appeal

I will deal briefly with both contentions. The state opposes the application for leave to appeal and in particular the application for leave to appeal to the Supreme Court of Appeal on the basis that the issues raised by the applicant in this matter is no more than a question of the evaluation of the evidence of the "non-recanting" witnesses and that the matter does not involve a question of law and nor does it require the specific attention of the Supreme Court of Appeal.

During the course of the trial, the applicant's counsel indicated that the applicant would seek leave to appeal to the Supreme Court of Appeal on the questions as to whether this matter had correctly been referred to the High Court in terms of the minimum sentence legislation for the purposes of sentence. The applicant had not been warned when pleading of the application of the provisions of the minimum sentence legislation. After the applicant had been convicted in the Regional Court, the magistrate proceeded to sentence the applicant.

The applicant had indicated that he would seek leave to appeal on that issue. I was at that stage of the view that if an application for leave to appeal was to be made on the issue as to the applicability of the minimum sentence legislation that such an issue should more appropriately be referred to the Supreme Court of Appeal for consideration, given that a court of this division had already dealt with that issue. However, in this application for leave to appeal, the applicant only seeks leave to appeal against the conviction and on the basis of the acceptance by this court of the evidence of the "non-recanting" witnesses.

I am of the view that leave to appeal to a full bench of this Division should be granted. There are reasonable prospects that another court may arrive at a different conclusion on the evaluation of the evidence of the "non-recanting witnesses".

Leave to appeal is therefor granted to a Full Bench of the Western Cape High Court.

SALDANHA. J