IN THE MAGISTRATE COURT FOR THE REGIONAL DIVISION OF

FREE STATE PROVINCE HELD AT HEILBRON

Case No: RC23/22

IN THE MATTER BETWEEN
MVULANE SMANGA BONGANI APPLICANT

AND

THE STATE RESPONDANT

NOTICE OF APPEAL

Be pleased to take notice that {Mvulani Smanga Bongani} hereinafter referred to as the
Applicant, hereby seeks an order to be granted in the following terms:
1.
That the Application for Leave to Appeal the judgment on conviction and sentence be granted
in terms of Section 309B of the Criminal Procedure Act 51 of 1977, as amended.
2.
That the Application for Condonation for late filing of this application be granted as the grounds
of the late submission is outlined in the founding affidavit thereof.
3.
That, the conviction and sentence be set aside.
4.
Alternative relief be granted to the applicant in the best interest of justice.
5.
Be pleased further to take notice, that should the Respondent intend to oppose the granting of
this application must;
6.
(a) File the answering affidavit and notice of intention to oppose within the expiring of the [30]
days to the clerk of the court.
(b) If no such notice of intention to oppose, the Applicant will request the clerk of the court to
place the matter before the honorable court for hearing accordingly
7.
Be pleased to take notice further that, the applicant has appointed the following address as the
addresses at which he will accept all notice and services of all processes in these proceedings

Groenpunt Correctional Services Medium A

Private Bag X 060
Vereeniging
1930

Dated and signed at Groenpunt Correctional Services on the

............... Day of....................................2024

__________________________
Applicant’s signature
Mvulane Smanga Bongani
Prison no: 223378597
FROM: MVULANI SMANGA BONGANI
Prison no: 223378597
Groenpunt Correctional Centre
Private Bag X 060
Vereeniging
1930

TO: Heilbron Magistrate Court

Criminal clerk of the court
Private bag X
Heilbron
 IN THE MAGISTRATE COURT FOR THE REGIONAL DIVISION OF
FREE STATE PROVINCE HELD AT HEILBRON

Case No: RC23/22

IN THE MATTER BETWEEN
MVULANI SMANGA BONGANI APPLICANT
AND
THE STATE RESPONDANT

APPLICATION FOR LEAVE TO APPEAL

IN TERMS OF SECTION 309 {B} OF THE CRIMINAL PROCEDURE ACT 51 OF 1977

Kindly take notice that the Applicant hereby submits his Application for Leave to Appeal to the
honorable Court in Person as the Lay Man in Law Sphere
Kindly take notice further that, the founding Affidavit of Mvulani Smanga Bongani will be
supported as the Ground of this Application is outlined thereof.
Dated and signed at Groenpunt Correctional Centre on the .............day of
........................2024

Applicant Signature

___________________________
 IN THE MAGISTRATE COURT FOR THE REGIONAL DIVISION OF
FREE STATE PROVINCE HELD AT HEILBRON

Case No: RC23/22

IN THE MATTER BETWEEN
MVULANI SMANGA BONGANI APPLICANT
AND
THE STATE RESPONDANT

Founding Affidavit

I the undersigned
MVULANI SMANGA BONGANI
Hereinafter Referred to as the Applicant:
1.
I am the major male serving the [07] years imprisonment sentence at Groenpunt Correctional
Centre, and I am the Appellant in these proceedings.
2.
The Respondent is the State as Represented by the Director of Public Prosecution from
Heilbron.
3.
The facts deposed herein are true and correct to the best of my knowledge unless otherwise
indicated, and I am duly authorized to file this Affidavit in terms of Section 35 (3) (0) of the
Constitution Act 108 of 1977.
4.
I was convicted by the Heilbron Regional Court on [28 NOVEMBER 2023] upon the following
charge:
4.1 Attempted Murder
5.
Upon Arraignment I pleaded Not Guilty to the abovementioned charge in terms of Section 115
of the Criminal Procedure Act 51 of 1977.
6.
I also made admissions which were recorded in terms of section 220 of the Criminal Procedure
Act 51 of 1977.
7.
Sentenced to {07} years in Imprisonment
8.
Your Applicant Draw Attention to the fact that this Application is against conviction and
sentence imposed by the Honourable court “A quo”
9.
I respectfully submit that I failed to submit my Application before the prescribed time of (14)
days due to the following Grounds:
AD CONDONATION
10.
After my conviction and sentence, I thought that my legal representative would submit my
Application as instructed, but when I inquired, nothing was filed on my behalf.
11.
I also requested my family to come to my Aid but they fail to generate the money to organize
the Lawyer of my own choice.
12.
I also seek help from the correctional services officer but none helped. And by the time I
obtained assistance from my fellow inmate, the period of 14 days has already lapsed.
13.
I respectfully submit that the blame should not be put to me for the late filling of this
Application as the state also contributed in this delay.
14.
I submit that due to the lack of resources in Prison further delay resulted.
15.
I humbly pray that this Court Grant Condonation for the late filling of this Application for the
leave to Appeal in the best interested of Justice, as I believed that another Court may come to
different decision.
16.
I hope and trust that this Honourable Court will Grant the Condonation for late filling of this
Application.
17.
AD CONVICTION
Grounds for Appeal: Factual Errors and Misapplication of the Law
The trial court's findings were not supported by the evidence presented. Specifically:
The wounds inflicted on the victim were located on the victim's back, suggesting that the victim
was retreating or no longer posed an immediate threat.
The appeallant acted in self-defence based on a reasonable belief that he was facing an
imminent attack. The court's failure to properly consider this evidence may have led to an
incorrect conviction.
18.
Misapplication of the law:
The court may have misapplied the principles of self-defence:
The appeallant belief that he was about to be stabbed was reasonable, given past experiences
with the same individual. The force used by the Appellant should be assessed in light of the
imminent threat he faced. The court's failure to adequately consider these factors may have
resulted in an unjust verdict.
19.
Precedent:
19.1 The case of Beckford v R (1988) establishes that the location of wounds can be crucial in
assessing self-defence claims. In Beckford, the court upheld an officer's actions even though the
suspect was shot in the back while fleeing. The officer's reasonable belief in imminent danger
was decisive.
19.2 The appeallant respectfully requests leave to appeal based on the grounds outlined above.
The evidence regarding the wounds' location and the appeallants reasonable belief in self-
defence warrants further consideration by the Appellant court.
20.
Consideration of Past Incidents:
The court might have incorrectly applied the law by not taking into account the previous
incidents between the Appellant and the victim, which could have established a context for
Appeallant's fear and reaction.
Furthermore, trial court's misapplication of these legal principles had a material effect on the
outcome of the case. It is crucial to show that, had the law been correctly applied, a different
verdict or sentence might have been reached.
21.
Initial Aggressor Doctrine:
The trial court erred in failing to recognise that the Appeallant was not the intitial aggressor.
The law is clear that an initial aggressor cannot claim self-defence. However, the Appeallant's
actions were defensive in response to a threat posed by the victim. Appeallant did not initiate
the confrontation; rather, he acted to protect himself when faced with imminent harm.
22.
Role of Provocation:
The court might have incorrectly applied the law by not taking into account the previous
incidents between the Appeallant and the victim, which could have established a context for
Appeallant's fear and reaction.
23.
In the case of S v DE Oliveira (1993) 2 SACR 59 (A) distinguishes between private defence and
punitive private defence. Even where a person honestly believed that their life or property was
in danger, if objectively viewed it was not the case, the defensive steps taken would not
constitute private defence.
24.

AD SENTENCE
{Grounds of Appeal against the Sentence}
Individualized sentencing
In regard to the sentence imposed, I respectfully submit that the Honourable Court “A QUO
“had misdirected itself in the following:
17.1. The Court a quo failed to consider that the provisions of section 276(1) (h) of the
Criminal Procedure Act, 51 of 1977 (“the CPA”) could have been applicable for the
Appellant in this regard.
17.2. [07] seven years’ imprisonment is shockingly inappropriate and out of proportion with
the totality of the accepted facts in mitigation.
17.3 The Appellant is the first offender.
17.4. The Court a quo erred by overemphasizing the interests of the community and the
seriousness of the crime.
17.5. The Court a quo erred by not giving due consideration to the element of mercy to be
afforded to the Appellant and gave the element of retribution too much weight.
17.6. In finding that the sentence would serve as a deterrent, the Court a quo erred by failing
to take into account that the attempted murder the Appellant was found guilty of does
not fall in the category of the worst cases of attempted murder (“some attempted
murder is worse than others”).
17.7. The Court a quo failed to consider that the Appellant showed remorse and tried to
admit that he was wrong to have perpetrated the crime in question.
17.8. The Court failed to consider that the Appellant is the first offender, thus another Court
would have found substantial and compelling circumstances to divert from the sentence
of 07 years imprisonment and would have imposed correctional supervision in this
regard.
17.11 The court a quo failed to consider that the Appellant is a bread winner at his home.
17.12 Moreover, the court a quo failed to consider that the Appellant is of good character to
the community.
17.13 The Court a quo erred by not giving proper consideration to the Appellant’s personal
circumstances, specifically his good prospects of rehabilitation.
25.
I respectfully submit that another court would come to a different decision after considering
the grounds (supra).
26.
I submit that although the offence of attempted murder is serious but nothing of such
Aggravation against the Applicant to justify the imposition of such a harsh sentence. In a
notable case S v Eadie, 2002, the Supreme Court of Appeal emphasized that courts must weigh
individual circumstances against established standards of behavior”. 1
27.
The court failed to evaluate the accused’s emotional state and the circumstances leading to the
offense to determine the credibility of their claim. Thus, I accordingly submit that the
Magistrate could have considered the imposition of Correctional supervision punishment in this
matter. It was held by the Courts that the introduction of correctional supervision has sought to
distinguish between two types of offenders – those who should be removed from society and
imprisoned and those who, although deserving of punishment, should not be so removed.2
28.
In Pholo Johannes Mosikili v S, the court having regard to all of the circumstances of the case
relevant to the so-called “Zinn triad”, 3 was of the view that there are substantial and
compelling circumstances justifying the departure from the mandatory minimum sentence. The
sentence of 12 years imprisonment imposed by trial court was substituted by 36 [thirty-six]
months of correctional supervision by the appeal court.
29.
Public Policy and Rehabilitation
I further submit that the appellant should not have been sentenced to direct imprisonment, but
should have been sentenced to a period of correctional supervision.
30.
In this matter, the magistrate was aware of the fact that mitigating factors outweigh
aggravating factors but “did not even consider” imposing a sentence of correctional supervision
in view of the seriousness of the offence and “the fact that there is a mandatory minimum
sentence involved”. It is thus apparent that the magistrate “turned a blind eye” to correctional
supervision as a sentencing option.
31.
In addition, I submit that the sentence imposed can be argued, and as held in Ngqandu, this
constituted a misdirection: a sentence of correctional supervision may be considered even in
relation to the most serious of offences.4
32.

1 S v Eadie (196/2001) [2002] ZASCA 24 (27 March 2002).

2 S v Ingram 1995 (1) SACR 1 (A) at 9d-e.
3 Pholo Johannes Mosikili v The State [2017] at para [16].

4 Ngqandu v The State [2014] ZAECGHC 87 (15 October 2014) at para [8].
Moreover, the imposition of a sentence of correctional supervision is provided for in section
276(1)(h) of the Criminal Procedure Act, 51 of 1977 (“the CPA”) and falls under the general
rubric of “community corrections” addressed in chapter VI of the Correctional Services Act, 111
of 1998 (“the CSA”). The laudable objectives of community corrections are recorded in section
50(1) (a) of the CSA as being:
“(I) to afford sentenced offenders an opportunity to serve their
sentences in a non-custodial manner;
(ii) to enable persons subject to community corrections to lead a
socially responsible and crime-free life during the period of their
sentence and in future;
(iii) to enable persons subject to community corrections to be
rehabilitated in a manner that best keeps them as an integral part
of society; and
(iv) to enable persons subject to community corrections to be fully
integrated into society when they have completed their
sentences.”
33.
Constitutional Rights
The magistrate erred by failing to take into account section (12) (1) (a) of the Constitution,
which guarantees the right to freedom and security of the person5. This provision aims to
prevent the imposition of an excessive mandatory minimum sentence that could infringe this
right. Consequently, the sentence imposed by the presiding officer is unduly severer when
evaluated in the light of the specific circumstances of the crime. It contravenes the principle of
proportionality.
34.
I submit that the regional magistrate seems to have followed a tick box approach with regard to
the personal circumstances of the Appellant. There is no analysis of the other mitigating
factors, such as the circumstances and facts of this particular crime. The absence of other
factors that can satisfy the court to impose a harsher sentence that is above the 5 years
minimum prescribed sentence, it is a factor that could arguably be mitigating, was immediately
devalued by reference to an aggravating factor without a proper factual foundation.

5 S (12) (1) (a) of the Constitution.

 35.
Furthermore, the regional magistrate misdirected himself by not giving proper weight to the
personal circumstances of the Appellant and the circumstances under which this crime was
committed. Such as the fact that the Appellant was once robbed by the victim. Hence,
reasonable eminent thread should be considered in this matter.
36.
The fact that there was an intoxication involved. It was never argued appropriately in court and
that does not justify or compel the court to depart from the lesser sentence and impose a
harsher sentence on the Appellant.
37.
I furthermore submit that Section 51 (3) of the Criminal Law Amendment Act states that if any
court referred to in subsection (1) or (2) is satisfied that substantial and compelling
circumstances exist which justify the imposition of a lesser sentence than the sentence
prescribed in these subsections, it shall enter those circumstances on the record of the
proceedings and must thereupon impose such lesser sentence.
38.
As stated by the learned Marais JA in the case of S v Malgas 2001 (1) SACR 469 SCA, paragraph
I;
“if the sentencing court on consideration of the circumstances of the particular case is satisfied
that they render the prescribed sentence unjust in that it would be disproportionate to the
crime, the criminal and the needs of society, so that an injustice would be done by imposing that
sentence, it is entitled to impose a lesser sentence.”6
39.
I submit that as noted above, the existence of a mandatory minimum sentence does not, in
itself, exclude a conclusion that correctional supervision is potentially an appropriate sentence
when substantial and compelling circumstances are indeed found to exist.
40.
The Personal Circumstances of the offender
I further submit that the Appellant is a youth and was employed. He obtained Grade 10
(standard 8) and continues to support and take care of his family. All of these are mitigating
factors.7 See in S v Mnguni.

6 S v Malgas 2001 (1) SACR 469 SCA

7 S v Mnguni 1994 (1) SACR 579 (A) at 583b-d.
 41.
The Appellant is a first offender, which is highly valued as a mitigating factor.8 He should not be
sent to prison if it can be avoided.9 This fact, combined with the age of the Appellant, as well
the Appellant’s motivation for perpetrating the offence constitute substantial and compelling
circumstances justifying departure from the mandatory minimum sentence.
42.
The application of section 282(b) of Act 51 of 1977 (CPA)
I further submit that the Appellant sentence be ante-dated to the date of his arrest in terms of
the provision of section 282(b) of the CPA.
43.
It was not the Appellant’s fault to delay the finalization of his trial, the state is responsible for
the delay.
44.
I furthermore submit that the provisions of section 282(b) be invoked in this regard. As the fault
of delay did not result because of the Appellant.
45.
I accordingly pray that my Application for Leave to Appeal against the Sentence of (7) years
imprisonment be Granted.
46.

I respectfully submit that I will be prejudiced if the judgement on Sentence is not changed to
correctional supervision.

Dated and signed at Groenpunt Correctional Service on the day of 2024

8 S v Stonga 1997 (2) SACR 497 (O) at 501b-c.

9 See e.g. S v Van Wyk 1997 (1) SACR 345 (T) at 366h-i.
{Confirmation of Affidavit}
I certify that before administering the oath, I ask the deponent the following Question and
wrote down his answers.

Do you know and understand the contents herein of this declaration?

Answer......yes

Do you consider the prescribed oath to be binding in your conscience?

Answer.......yes

Do you have any objection in taking the prescript oath?

Answer.........No

............................................
Applicant signature
MVULANI SMANGA BONGANI
 ----------------------------
COMMISSIONER OF Oath

I the commissioner of oath hereby certifies that the deponent has acknowledged knowing and
understanding the contents of this declaration, and the information deposed herein is true and
correct to the best of his knowledge and that he has no Objection of any sort, and his signature
is affixed in this Declaration in my presence on this day.

Dated and sign at Groenpunt Medium A on the....................Day ……….............2024