S v Malinga and Another (CA&R 183/2004) [2005] ZANCHC 70 (7 December 2005)

S v Malinga and Another (CA&R 183/2004) [2005] ZANCHC 70 (7 December 2005)

The court found that the only ground of appeal advanced by the applicants had already been considered and rejected in the previous appeal. The argument that the second applicant acted in self-defence was not raised in the trial court, and his version was legally rejected. There was no misdirection on the facts or evidence that could reasonably lead another court to a different conclusion. Consequently, there were no reasonable prospects of success on appeal, and the application for condonation for late filing was dismissed. The application for bail pending appeal was not considered as a result.

Citation
[2005] ZANCHC 70
Parties
Applicant: Sipho Malinga; Applicant: Mthandi Ntshinka; Respondent: The State
Court
Northern Cape High Court, Kimberley
Jurisdiction
South Africa
Judgment Date
7 December 2005
Case Number
CA&R 183/2004
Procedural Posture
Leave to Appeal / Application for Leave to Appeal and Condonation
Outcome
Application for condonation dismissed; leave to appeal not granted.
Judges
C C Williams, L P Tlaletsi
Legal Topics
Leave to Appeal, Condonation, Attempted Robbery, Attempted Theft, Firearm Use, Self Defence
Criminal Law Leave to Appeal Condonation Attempted Robbery Attempted Theft Firearm Use Self Defence

Case Brief

Summary, issues, holding and outcome

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Parties

Sipho Malinga

Applicant

Mthandi Ntshinka

Applicant

The State

Respondent

Procedural Posture

Leave to Appeal / Application for Leave to Appeal and Condonation

Legal Issues

  1. 1 Whether condonation for late filing of the application for leave to appeal should be granted.
  2. 2 Whether there are reasonable prospects of success on appeal regarding the conviction for attempted robbery rather than attempted theft.
  3. 3 Whether the second applicant's use of a firearm constituted self-defence.

Ratio Decidendi

The court found that the only ground of appeal advanced by the applicants had already been considered and rejected in the previous appeal. The argument that the second applicant acted in self-defence was not raised in the trial court, and his version was legally rejected. There was no misdirection on the facts or evidence that could reasonably lead another court to a different conclusion. Consequently, there were no reasonable prospects of success on appeal, and the application for condonation for late filing was dismissed. The application for bail pending appeal was not considered as a result.

Court Disposition

Application for condonation dismissed; leave to appeal not granted.

Orders

  • The application for condonation is dismissed.
  • The application for bail pending appeal is not considered.