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Chulayo v S (A172/2012) [2012] ZAWCHC 274 (14 June 2012)

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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