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[2015] ZASCA 56
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Greenwood v S (20075/14) [2015] ZASCA 56 (30 March 2015)
THE SUPREME COURT
OF APPEAL OF SOUTH AFRICA
JUDGMENT
Not
Reportable
Case
no: 20075/14
In
the matter between:
COLIN
ALLAN
GREENWOOD
....................................................................................
APPELLANT
and
THE
STATE
.....................................................................................
RESPONDENT
Neutral
citation:
Greenwood v S
(20075/14)
[2015] ZASCA 56
(30 March 2015)
Coram:
Shongwe and Mbha JJA and Gorven AJA
Heard:
16 March 2015
Delivered:
30 March 2015
Summary:
Criminal Procedure –
appeal against refusal to grant leave to appeal on petition –
question to be adjudicated is whether
the appellant has reasonable
prospects of success on appeal and whether there are any other
reasons why an appeal should be heard.
ORDER
On
appeal from:
The Eastern Cape
High Court, East London (Dambuza and Tshiki JJ concurring, sitting as
court of appeal):
The appeal is
dismissed.
JUDGMENT
Shongwe
JA (Mbha JA and Gorven AJA concurring)
[1]
On 26 April 2006, the appellant was convicted on two counts of
indecent assault in terms of s 94 of the Criminal Procedure Act
51 of
1977 (‘the Act’), two counts of rape in contravention of
s 3, read with ss 56(1), 57(1), 58, 59 and 60 of the
Criminal Law
(Sexual Offences and Related Matters) Amendment Act 32 of 2007 (‘the
Sexual Offences Act’) and three counts
of sexual assault in
contravention of s 5(1) read with ss 1, 56(1), 57(1), 58, 59 and 60
of the Sexual Offences Act, by the regional
magistrate’s court
(East London). He was sentenced to 10 years’ imprisonment (all
counts taken together for purposes
of sentence) of which 4 years’
imprisonment was suspended for 5 years on certain conditions.
[2]
His application for leave to appeal against conviction was refused,
however leave to appeal against sentence was granted. His
petition to
the Judge President (Grahamstown High Court) against refusal of leave
against conviction was unsuccessful, however
leave to appeal against
the dismissal of the petition was granted to this court (Dambuza J
and Tshiki J concurring).
[3]
The gravamen of what is before us is whether or not leave to appeal
should have been granted by the high court (See
S
v Khoasasa
2003 (1) SACR 123
(SCA) para
14 and 19-22;
S v Smith
2012 (1) SACR 567
(SCA) para 3;
S v
Kruger
2014 (1) SACR 647
(SCA).
Therefore, the test to be applied is whether there is a reasonable
prospect of success in the intended appeal and not the
appeal itself
–
Matshona v S
[2008] 4 All SA 68
(SCA) para 4. It was common cause during the
hearing that the onus rested on the appellant to satisfy this court
that there was
a reasonable prospect of success on appeal – put
differently whether there was a probability of the appellant
succeeding
on appeal.
[4]
Plasket AJA in
S v Smith
(supra) succinctly observed that:
‘
[7]
What the test of reasonable prospects of success postulates is a
dispassionate decision, based on the facts and the law, that
a court
of appeal could reasonably arrive at a conclusion different to that
of the trial court. In order to succeed, therefore,
the appellant
must convince this court on proper grounds that he has prospects of
success on appeal and that those prospects are
not remote, but have a
realistic chance of succeeding. More is required to be established
than that there is a mere possibility
of success, that the case is
arguable on appeal or that the case cannot be categorised as
hopeless. There must, in other words,
be a sound, rational basis for
the conclusion that there are prospects of success on appeal.’
[5]
Counsel for the appellant contended that there are reasonable
prospects of success on appeal on the grounds that the magistrate
misdirected himself in the following respects. That because the
complainants were minors, the trial court should have applied three
cautionary rules, those relating to a single witness, young children
and what he referred to as a residual cautionary rule. He
pointed out
certain contradictions between the evidence of the complainants and
also contradictions based on what they said in
their statements to
the police. That the magistrate erred in not finding that the
appellant was a good witness despite his giving
evidence which was
clear and not full of contradictions. That the magistrate erred in
accepting the evidence of Miss Karen Andrews,
the clinical
psychologist who dealt with the behaviour of the complainants after
the alleged sexual assault and rape. That the
magistrate erred in
accepting the evidence of Doctor Bomkazi Majeke alternatively he
failed to place enough weight on the fact
that she (the Doctor) was
inexperienced at the time she examined the two complainants. That the
magistrate erred by finding that
there was no conspiracy or collusion
between the two complainants.
[6]
Mr Price for the appellant referred to a whole host of criticisms,
almost criticising each and every finding of the trial court.
I shall
not deal with all the contentions raised by him, it suffices to
mention the few above.
[7]
It was contended on behalf of the respondent that, it was naturally
expected that there would be contradictions between the
two young
complainants. However, the trial court examined the evidence tendered
by both the State and the defence holistically
and not on a piece
meal basis. Counsel for the respondent argued that, notwithstanding
the concession of the existence of contradictions,
same did not
destroy the evidence of the complainants as supported by the medical
evidence. Counsel further argued that there was
no collusion between
the two complainants as they independently and separately recollected
what had happened and reported to their
respective parents.
[8]
I agree that the contradictions were expected, due to the passage of
time and the fact that the complainants were young children
who could
not remember dates and the sequence of events. Holmes JA in
S v
Artman & another
1968 (3) SA 339
(A) at 341 remarked that:
‘
I
would add that, while there is always need for caution in such cases,
… and courts must guard against their reasoning tending
to
become stifled by formalism. In other words, the exercise of caution
must not be allowed to displace the exercise of common
sense.’
He
further referred to similar remarks of Macdonald AJP in the Rhodesian
Appellate Division case of
R v J
1966 (1) SA 88
(SR) at 90 – see also
S
v Snyman
1968 (2) SA 582
(AD) at 585.
[9]
The trial court found that ‘[w]hat is important is that on the
same Sunday in January 2009 the two boys at different and
separate
places in East London, reported to their respective fathers acts of
indecent assault committed by the accused. As I have
said, the
versions coincided. This aspect, which is not disputed, clearly
serves as corroboration for their respective claims.
There was no
possibility of any collusion between them. There is no bad blood’.
The trial court went on to say that ‘[t]aking
into account that
these incidents happened over a lengthy period of time and
repeatedly, such a confusion regarding the positions
in which it
happened, is possible’.
[10]
Having heard both counsel, I am not satisfied that the alleged
misdirections are sufficient to create a probability of the
appellant
succeeding on appeal, hence I conclude that the appellant failed to
show that there is a reasonable prospect of success
on appeal. Viewed
holistically there are no other reasons why an appeal should be
heard. In the result:
[11]
The appeal is dismissed.
_______________________
J
B Z SHONGWE
JUDGE
OF APPEAL
Appearances
For
the Appellant: T N Price SC
Instructed
by:
Changfoot-Van
Breda Attorneys, East London;
Symington
& De Kok Attorneys, Bloemfontein.
For
the Respondent: J P J Engelbrecht
Instructed
by:
The
Director of Public Prosecutions, Grahamstown;
The
Director of Public Prosecutions, Bloemfontein.