Mabejane and Others v S (K/S07/2015) [2016] ZANCHC 44 (7 December 2016)

Mabejane and Others v S (K/S07/2015) [2016] ZANCHC 44 (7 December 2016)

The court found that the applicants failed to demonstrate reasonable prospects of success on appeal. The evidence of the state witnesses, including the s 204 witness, was uncontested and properly accepted. The accused did not testify or provide any rebuttal to the prosecution's case, and the right to silence does not shield them from the consequences of failing to answer incriminating evidence. The grounds for leave to appeal were not clearly or unambiguously set out, and the arguments presented merely rehashed points already decided in the main judgment. The court applied the test for leave to appeal as set out in S v Smith and concluded that there was no sound, rational basis for...

Citation
[2016] ZANCHC 44
Parties
Applicant: Kearabetswe McNulty Mabejane; Applicant: Kitlano Occasion Mabejane; Applicant: Gadiehele Patricia Kgomoelela; Applicant: Tshepiso Shadrack Modutwane; Applicant: Sipho Giff Keogatile; Respondent: The State
Court
Northern Cape High Court, Kimberley
Jurisdiction
South Africa
Judgment Date
7 December 2016
Case Number
K/S07/2015
Procedural Posture
Leave to Appeal / Application for Leave to Appeal After Conviction and Sentencing
Outcome
Application for leave to appeal dismissed.
Judges
Mamosebo
Legal Topics
Leave to Appeal, Murder With Dolus Eventualis, Assault Gbh, Reasonable Prospects of Success, Right to Silence, S204 Witness Evidence
Criminal Law Leave to Appeal Murder With Dolus Eventualis Assault Gbh Reasonable Prospects of Success Right to Silence S204 Witness Evidence

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Parties

Kearabetswe McNulty Mabejane

Applicant

Kitlano Occasion Mabejane

Applicant

Gadiehele Patricia Kgomoelela

Applicant

Tshepiso Shadrack Modutwane

Applicant

Sipho Giff Keogatile

Applicant

The State

Respondent

Procedural Posture

Leave to Appeal / Application for Leave to Appeal After Conviction and Sentencing

Legal Issues

  1. 1 Whether the applicants have reasonable prospects of success on appeal against their convictions for murder and assault GBH.
  2. 2 Whether the evidence of the s 204 witness and other state witnesses was properly accepted by the trial court.
  3. 3 Whether the accused's failure to testify affected the outcome.

Ratio Decidendi

The court found that the applicants failed to demonstrate reasonable prospects of success on appeal. The evidence of the state witnesses, including the s 204 witness, was uncontested and properly accepted. The accused did not testify or provide any rebuttal to the prosecution's case, and the right to silence does not shield them from the consequences of failing to answer incriminating evidence. The grounds for leave to appeal were not clearly or unambiguously set out, and the arguments presented merely rehashed points already decided in the main judgment. The court applied the test for leave to appeal as set out in S v Smith and concluded that there was no sound, rational basis for...

Court Disposition

Application for leave to appeal dismissed.

Orders

  • The application for leave to appeal is dismissed.