IN THE HIGH COURT OF SOUTH AFRICA

(WESTERN CAPE HIGH COURT CAPE TOWN)

SSD 37/09
In the petition for leave to appeal by:

MPUMZENI NCAMBE Petitioner

And

THE STATE Respondent

PETITION

TO THE HONOURABLE THE JUDGE PRESIDENT AND THE OTHER

HONOURABLE JUDGE OR JUDGES OF THE HIGH COURT OF SOUTH
AFRICA (WESTERN CAPE HIGH COURT, CAPE TOWN) TO WHOM THE
HONOURABLE THE JUDGE PRESIDENT MAY REFER THIS PETITION

The petition of

MPUMZENI NCAMBE

Humbly sheweth:
1. Your petitioner is MPUMZENI NCAMBE, an adult male prisoner.

2. The Respondent is THE STATE.

3. Your petitioner seeks leave to appeal against the conviction by the learned
regional magistrate, Ms F Mouton, in the Western Cape regional Court of
South Africa, held at Strand on the 24th of February 2010 in which the
learned regional magistrate granted judgement against your petitioner, as
follows:

a. Guilty on three counts to wit: murder, possession of an unlicenced fire-

arm and possession of ammunition;
b. And sentenced to an effective period of ten years imprisonment.

4. A copy of the judgement handed down by the learned regional magistrate is

annexed hereto marked A.

5. After judgement was delivered your petitioner applied for condonation for
the late filing of his leave to appeal application as well as leave to appeal
against such conviction.

6. Annexed hereto, marked B is a copy of your petitioners application for

leave to appeal.

7. On the 23rd day of March 2010 the application for leave to appeal against
conviction was heard by the learned regional magistrate, Ms Mouton who
granted the condonation application, but refused the application for leave to
appeal against the conviction an all three charges.

8. The judgement, in which the application for leave to appeal was dismissed,
has yet to be transcribed. As soon as it becomes available it will be furnished
to this court.

9. Your petitioner refers to the notice of application for leave to appeal from
which it appears that your petitioner raised the following grounds on which
leave to appeal against conviction is applied for.
10.Each of these grounds is dealt hereafter separately:

10.1 That the learned magistrate misdirected herself in finding that the state
has proven its case beyond reasonable doubt on charge one, murder.

10.2 The learned magistrate erred in not considering the petitioners

constitutional right to test evidence to a sufficient extent. The
acceptance of the Court of Annexure J, the sworn statement of a
potential witness who passed away before she could render viva voce
testimony, resulting in negation of the petitioners right to cross-
examination, was severely detrimental to the petitioner.

10.3 The magistrate erred by awarding evidentiary weight to this hearsay

evidence by not applying a sufficient measure of circumspection.

10.4 The learned magistrate did not test the reliability of the statement of
Mangaliso Bangani, Annexure J to a sufficient extend. This
statement that has been accepted in terms of the Law of Evidence
Amendment Act 45 of 1998 (3)(c) to be in the interest of justice.
According to said statement Ms Bangani knew the petitioners co-
accused, hereinafter referred to as the first accused. Herein mention is
made of the first accused buying food at the container shop where the
deponent had been working.