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[2013] ZASCA 75
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Barnard v S (891/2012) [2013] ZASCA 75 (29 May 2013)
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THE SUPREME COURT
OF APPEAL OF SOUTH AFRICA
JUDGMENT
Case no
:
891/2012
Not Reportable
In
the matter between:
MORNÈ
BARNARD
................................................................................
Appellant
and
THE STATE
..........................................................................................
Respondent
Neutral citation:
Barnard v The State
(891/2012)
[2013] ZASCA 75
(29 May 2013)
Coram:
MPATI P, THERON and PILLAY JJA and WILLIS and ERASMUS AJJA
Heard:
02 May 2013
Delivered
29 May 2013
Summary:
Criminal
Procedure – Leave to appeal – Where an accused obtains
leave to appeal against the refusal in a high court
of a petition
seeking leave to appeal against a conviction and sentence in the
regional court, the issue is whether leave to appeal
should have been
granted by the high court and not the appeal itself – the test
is whether there is a reasonable prospect
of success on appeal.
________________________________________________________________
ORDER
________________________________________________________________
On appeal from:
Free State High Court, Bloemfontein (A Kruger and KJ Moloi JJ
sitting as court of appeal):
The appeal is
dismissed.
________________________________________________________________
JUDGMENT
________________________________________________________________
THERON
JA (
MPATI P, PILLAY JA and WILLIS and ERASMUS A
JJA
concurring):
[1] The appellant
stood trial on three charges, namely rape, common assault and
unlawfully pointing a firearm in the regional court,
Welkom. On 23
March 2010, he was convicted of rape and sentenced to 15 years’
imprisonment.
[2] It is necessary
to consider the nature and ambit of this appeal. This court, in
S
v Khoasasa
2003
(1) SACR 123
(SCA) held that the refusal of leave to appeal to a high
court by judges of that court, constitutes a final order of a
provincial
division against which an appellant, either with the leave
of the high court or this court, could appeal.
[3] Where a person
obtains leave to appeal to this court against the refusal in a high
court of a petition seeking leave to appeal
against a conviction or
sentence in the regional court, as is the case here, the issue before
the court is whether leave to appeal
should have been granted by the
high court and not the merits of the appeal.
1
This is the position
as this court does not have authority to entertain an appeal directly
from the regional court.
2
[4] It is trite that
the test in regard whether leave to appeal should have been granted
by the high court is whether there are
reasonable prospects of
success on appeal – whether a court of appeal could reach a
different conclusion to that of the trial
court.
[5] In order to
determine whether the appellant has prospects of success on appeal,
it is necessary to briefly examine the merits.
It is neither
necessary nor desirable to deal with the merits in great detail.
3
The facts giving
rise to the prosecution and conviction of the appellant are largely
common cause. During the early hours of 28
June 2008, the appellant
was driving his motor vehicle in the town of Virginia, in the Free
State, when he picked up the complainant,
who had signalled that she
was looking for a lift. They travelled to the appellant’s home
where they had sexual intercourse.
The question before the trial
court was whether the intercourse was consensual or not. The
appellant’s version was that the
intercourse was consensual and
he believed that the complainant was a prostitute.
[6] On appeal, it
was contended, on behalf of the appellant, that the high court ought
to have found that there is a reasonable
possibility that another
court might find that the trial court erred in two respects. First,
in rejecting the appellant’s
version as not being reasonably
possibly true. Secondly, in not approaching the evidence of the
complainant with the necessary
caution and merely paying lip service
to the cautionary rule. The reasons stipulated by the magistrate for
rejecting the version
of the appellant, were (1) the evidence did not
support the alleged belief held by the appellant that the complainant
was a prostitute;
(2) neither the nature of the services to be
rendered nor the price to be paid was discussed; and (3) crucial
aspects of the appellant’s
version were not put to the
complainant, such as that the complainant had placed her hand on his
thigh shortly after entering the
motor vehicle, that she had enjoyed
the sexual intercourse and that the sex had been rough (‘rowwe
seks’).
In
accepting the evidence of the complainant, the trial court found that
she was an impressive witness, that her evidence was corroborated
in
material respects and in particular by the medical evidence. I am not
persuaded that the magistrate was wrong in the assessment
of the
evidence and accordingly am not satisfied that there exists a
reasonable possibility that an appeal court can reach a different
conclusion in respect of the conviction.
[7] The following
factors have a bearing on whether there are reasonable prospects of
success in respect of sentence. The appellant
was 34 at time of his
trial, with a previous conviction for assault. He was employed by the
South African Police Service as a police
officer. He had suffered
financially since the charges were brought against him as he had been
suspended for a period. He would
probably, and in consequence of his
conviction, be dismissed from his employment. There are a number of
aggravating factors in
this matter namely (a) although he was
off-duty at the time, the appellant was a police officer who was
supposed to protect and
serve the community; (b) the complainant
trusted him and he abused this trust; (c) a firearm was used to
threaten the complainant;
(d) the complainant sustained physical
injuries as well as psychological trauma in consequence of the rape;
and (e) rape is a serious
and extremely prevalent offence. Having
regard to the nature and circumstances of the offence, the personal
circumstances of the
appellant as well as the interests of the
community, I am not persuaded that another court might find that the
sentence of 15 years’
imprisonment is unduly excessive or
shockingly inappropriate.
[8] In the result,
the appeal is dismissed.
______________
L V THERON
JUDGE OF APPEAL
APPEARANCES
For Appellant: J Nel
SC
Instructed by:
Pie-Ér
Huggett Incorporated,
Bloemfontein
For Respondent: S
Goirgi
Instructed by:
The Director of
Public Prosecution,
Bloemfontein
1
Matshona
v S
[2008] 4 All SA 68
(SCA) para 5.
2
S
v N
1991 (2) SACR 10
(A) at 16a-e;
S v Khoasasa
2003 (1)
SACR 123
(SCA) para 12;
Matshona v S
[2008] 4 All SA 68
(SCA)
para 3.
3
De
Sousa v S
[2012] JOL 29000
(SCA) para 9.