Nkomo v S (A150/2011) [2011] ZAFSHC 166 (24 October 2011)

Nkomo v S (A150/2011) [2011] ZAFSHC 166 (24 October 2011)

The court found that there are reasonable prospects that another court could reach a different conclusion both on the merits of the case and regarding the request to remit the matter for further evidence. The complainant was a single witness and did not report the incident immediately, which raises questions about the reliability of the evidence. The application to lead further evidence was made under the correct statutory provision, as the new evidence was not available at the time of the trial. Accordingly, leave to appeal was granted against the whole of the previous judgment, including the dismissal of the appeal and the request to remit for further evidence.

Citation
[2011] ZAFSHC 166
Parties
Appellant: Mthandeki Kleinbooi Nkomo; Respondent: The State
Court
Free State High Court, Bloemfontein
Jurisdiction
South Africa
Judgment Date
24 October 2011
Case Number
A150/2011
Procedural Posture
Leave to Appeal / Application for Leave to Appeal Following Dismissal of Appeal and Application to Lead Further Evidence.
Outcome
Leave to appeal granted to the Supreme Court of Appeal against the whole of the previous judgment, including dismissal of the appeal and the request to remit for further evidence.
Judges
Kruger, Molemela
Legal Topics
Leave to Appeal, Adducing Further Evidence, Single Witness Testimony
Criminal Law Civil Procedure Leave to Appeal Adducing Further Evidence Single Witness Testimony

Case Brief

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Parties

Mthandeki Kleinbooi Nkomo

Appellant

The State

Respondent

Procedural Posture

Leave to Appeal / Application for Leave to Appeal Following Dismissal of Appeal and Application to Lead Further Evidence.

Legal Issues

  1. 1 Whether the appellant should be granted leave to appeal against the dismissal of his appeal and application to lead further evidence.
  2. 2 Whether reasonable prospects exist that another court may reach a different conclusion on the merits and the request to remit for further evidence.

Ratio Decidendi

The court found that there are reasonable prospects that another court could reach a different conclusion both on the merits of the case and regarding the request to remit the matter for further evidence. The complainant was a single witness and did not report the incident immediately, which raises questions about the reliability of the evidence. The application to lead further evidence was made under the correct statutory provision, as the new evidence was not available at the time of the trial. Accordingly, leave to appeal was granted against the whole of the previous judgment, including the dismissal of the appeal and the request to remit for further evidence.

Court Disposition

Leave to appeal granted to the Supreme Court of Appeal against the whole of the previous judgment, including dismissal of the appeal and the request to remit for further evidence.

Orders

  • The accused is granted leave to appeal to the Supreme Court of Appeal against the whole of the judgment of 5 September 2011, including the dismissal of the appeal and the request that the matter be remitted to the regional court for the hearing of further evidence.