Professional Documents
Culture Documents
Application Leave To Appeal Azile Gila
Application Leave To Appeal Azile Gila
HELD AT SOMERSET WEST REGIONAL COURT
CASE NO: SWS 35/2018
In the matter between:
AZILE GILA APPLICANT
and
THE STATE RESPONDENT
_____________________________________________________________________
APPLICATION FOR LEAVE TO APPEAL
_____________________________________________________________________
KINDLY TAKE NOTICE that the above named Applicant intends to
apply for leave to appeal to the High Court of South Africa (Western
Cape Provincial Division) against his conviction and sentence handed
down by the Honourable Regional Magistrate, Mrs Cannon at the
above Honourable Court on the 31 August 2020 .
KINDLY FURTHER TAKE NOTICE that at the hearing of the
Application on behalf of the Applicant, it will be argued that there are
reasonable prospects of success and that another Court may come to
a different finding on the grounds that the above Honourable Court
misdirected itself in respect of the following:
AD CONVICTION:
The Honourable Magistrate misdirected herself by finding that the
State proved its case beyond reasonable doubt and that it was entitled
to find the Applicant guilty on both counts. The Court misdirected
itself in the following respects:
Charge 1 Murder and Charge 2 Attempted Murder:
1. The Honourable Magistrate did not properly take into account
the Applicant’s alibi being reasonably possibly true. The
testimony of the Investigating Officer was just accepted as the
truth although there was evidence from the Accused that the
Investigating Officer had threatened his alibi witness, telling her
that he will put her in jail if she testifies. She died shortly
thereafter and could not testify.
2. The Honourable Magistrate did not properly take into account the
fact that the witness Lionel Kiafouka who identified the
Applicant at a photo identification parade on 10/9/2017 was
left alone for 40 minutes in the room together with all the
paperwork relating to the photo identification parade by
Adjudant Greeff who held the parade and that the witness had
ample time to read through the paperwork. A list was attached
to this paperwork with only the names of the two accused at
that stage and the positions they occupied on the parade while
the other names were just marked “Unknown”.
3. The Honourable Magistrate did not properly take into account that
the photo identification parade was held 7 months after the
incident and also 7 months after the arrest of the Applicant and
that the Applicant had numerous district court appearances
before this photo identity parade was held during which time it
was possible that the family or friends of the witness could have
seen the Applicant. The Witness/complainant Lionel Kiafouka
had testified that the investigating officer contacted him
regularly in respect of court dates.
4. The Honourable Magistrate did not properly take into account the
possibility that although a good witness, the complainant
Kiafouka could have made a bona fide mistake with the
identification as he was himself being attacked which is a
high-stress situation, focussed on the weapon (knife) during the
incident involving the other attacker, was on the other side of
the road from where his brother the deceased was being
attacked and was in his own words “completely disorientated”.
4. The Honourable Magistrate did not properly take into account that
the second witness Siphelele Sisusa was not able to identify the
Applicant during the photo identification parade on 2/10/2017
although he had testified that he had seen the Applicant
numerous times before the incident. The Honourable
Magistrate placed too much emphasis on the dock identification
of witness Siphelela Sisusa of the Applicant and did not take
into consideration that memory fades with time and it is highly
unlikely that he could make a positive identification in court
three and a half years after the incident if he was not able to
identify the Applicant in a photo identification parade 7 months
after the incident.
5. The Honourable Magistrate did not take into consideration that the
Applicant’s version could possibly have been true in respect of
how he obtained the wound in his back. The investigating
officer did not take the Applicant to a medical practitioner so
that the cause of the injury, the age of the injury and the type of
injury could be properly assessed. The Honourable Magistrate
placed too much emphasis on the fact that the Investigating
Officer Ntsontsho had believed that this injury was caused by a
screwdriver although there is no medical evidence supporting
this opinion.
6. The Honourable Magistrate did not take into account that the
Applicant’s version about how he obtained the injury and that
the time when he incurred it could possibly be true. The
Applicant gave a detailed explanation about how he suffered
this injury from a sharp piece of wood when he was helping the
initiation boys in the Eastern Cape build a hut.
7. The Honourable Magistrate did not take into consideration that
Mr Siyabonga Bavuma (who was accused 2 in this matter), had
reason to implicate the Applicant as he wanted to minimize his
part in the attack as well as he was being hurt by Mr Ntsontsho
the investigating officer who tightened his handcuffs until he
lost feeling in his hands and only then he proceeded to point out
the Applicant who was arrested and in the cells on another
case. The Honourable Magistrate erred in that she took this
pointing out as corroboration of the Applicant’s part in this
incident although Accused no 2, Mr Siyabonga Bavuma was
shown to be a dishonest witness during his testimony and
cross-examination.
AD SENTENCE
The Honourable Magistrate erred by sentencing the Applicant to a
sentence that is shockingly inappropriate, for the following reasons:
1. The Honourable Magistrate erred by not giving proper
consideration to the Applicant’s personal circumstances, him
being the father of two children aged 5 and 8, that the mother of
his children died, that he was only 22 years old during the
incident, that he is a first offender and more specifically his
chances of rehabilitation.
2. The Honourable Magistrate erred by giving too much
consideration to hearsay evidence from the Investigating Officer
Mr Ntsontsho about what a known Nigerian criminal named
Bompie had said, to establish this incident to be a xenophobic
crime and this being pure speculation.
4. The Applicant contends with respect that there is a reasonable
possibility that another Court may come to a different finding
and not impose 20 years direct imprisonment in respect of the
first charge of murder and 10 years for charge 2 taken together,
effectively sending Applicant to prison for 20 years.
DATED AT STRAND THIS DAY 31 AUGUST 2020
………………………………………
SARISA SWANEPOEL,
ATTORNEY FOR APPLICANT
PO Box 385 Strand 7140
0726479230
TO: THE HONOURABLE REGIONAL MAGISTRATE
AND TO: THE CLERK OF THE CRIMINAL COURT
REGIONAL COURT
AND TO: THE DIRECTOR OF PUBLIC PROSECUTIONS