R v Mkhonta (27 of 2004) [2004] SZSC 21 (18 November 2004)



APPEAL CASE NO.27/2004


In the matter between:


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MBONGENI MKHONTA AND

THE KING


APPELLANT


RESPONDENT



BROWDE JA STEYN JA TEBBUTT JA IN PERSON MR. S. FAKUDZE


CORAM


FOR APPELLANT FOR CROWN



JUDGEMENT


Tebbutt JA

The applicant seeks leave 1'rom this Court to appeal to it against sentences imposed on him by a Senior Magistrate in the district of Shiselweni. The sentences were imposed in respect of two counts of robbery and three counts of housebreaking and theft, of which he was convicted by the Magistrate. The sentences were a total of four and half



years imprisonment on the three housebreaking counts; one of 7 years on" the one robbery charge and one of 6 years on the second robbery charge. All the sentences were ordered to run consecutively.


The applicant appealed to the High Court on the question of the sentences, submitting that the two sentences of seven and six years respectively on the robbery charges should be ordered to run

concurrently. His appeal was dismissed.


It is at this stage that he applies for leave to appeal to this Court. His application is(as I have said, directed against the sentences only. Again he asks that the sentences on the robbery counts be allowed to run concurrently, contending that the effect of their running consecutively is that he has to serve a total of 13 years which, he says, induces a sense of shock. That same argument was rejected by the High Court in his appeal to it.


Before an applicant can apply to this Court for leave to appeal to it, a certificate from a judge of the High Court, granting or refusing such leave is required in terms of Rule 52, read with Rule 49, of the Rules of the High Court. The applicant has not obtained such a certificate. On this ground alone, therefore, his application should be dismissed.


It is also deserves to be dismissed for a further reason. The test as to whether an application such as the present should be granted is whether the applicant has shown thai: he has reasonable prospects of success on appeal; in other words is there a reasonable prospect that the Court of Appeal will arrive at. a conclusion different from that: of the Court a quo? In my view, the applicant, has no such prospects. The learned judges in the High Court correctly pointed out that there were no misdirections by the Magistrate. The applicant had apparently embarked on a life of



crime. He had committed a series of housebreakings and robberies over a relatively short period of time and had shown no signs of contrition for what he had done. The sentences, the High Court found, induced no sense of shock. Another Court is in my opinion unlikely to differ from the views of the High Court.



The application is therefore dismissed.



P.H. TEBBUTT



J. BROWDE


-

Judge of Appeal


DELIVERED IN OPEN COURT THIS 18T" DAY OF NOVEMBER 2004


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