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[2010] ZAWCHC 441
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Booysen v S (A610/2009) [2010] ZAWCHC 441 (17 August 2010)
IN
THE HIGH COURT OF SOUTH AFRICA
(WESTERN
CAPE HIGH COURT, CAPE TOWN)
CASE
NUMBER: A610/2009
DATE:
17 AUGUST 2010
In
the matter between:
FREDDIE
BOOYSEN
….............................................................................
1
st
Applicant
PIETER
MENTOOR
…..............................................................................
2
nd
Applicant
DIMITRI
VISAGIE
…..................................................................................
3
rd
Applicant
DIMITRI
SWARTS
….................................................................................
4
th
Applicant
and
THE
STATE
…............................................................................................
Respondent
JUDGMENT
Application
for Leave to Appeal
ZONDI,
J
:
This
is an application for leave to appeal against the judgment and order
of 7 May 2010, dismissing the applicants' appeal against
their
conviction. The applicants' main attack on the magistrate's judgment
is based on the grounds that she erred and misdirected
herself in
holding that there was corroboration for the evidence of the
accomplice witness, Brian Christians.
Mr
Uijs
,
who appeared for the applicants, submitted that the court a
quo's
finding
that corroboration for Christians' evidence was necessary was
correct, as Christians had contradicted himself on various
occasions
and which he submitted, affected his credibility and the quality of
his evidence. He argued that the court a
quo
erred
in finding that there was corroboration for the evidence of
Christians, because the evidence which the court a
quo
found
to have corroborated Christians' evidence, did not implicate the
applicants.
Mr
De
Jongh
,
who appeared for the State, though conceding that the evidence which
the magistrate found to have corroborated Christians' evidence
did
not implicate the applicants submitted that Christians' evidence, in
its totality, was clear and satisfactory in all material
respects.
The
question is whether we should grant leave to appeal in this matter.
In
an application for leave to appeal, the applicant must satisfy the
Court that he has a reasonable prospect of success on appeal.
The
mere possibility that another Court might come to a different
conclusion, is not sufficient to justify the grant of leave to
appeal. It is correct that in the present case the only direct
evidence implicating the applicants, is the testimony of Christians,
the accomplice. Christians' evidence, because of his inherent danger,
should be approached with caution and there must be some
safeguard to
reduce the risk of a wrong conviction.
It
is, however, not a rule of law or practice that requires the Court to
find corroboration, implicating the accused. But what is
required is
that the Court should warn itself of the particular danger of
convicting on the evidence of the accomplice and seek
some safeguard
to reduce the risk of a wrong person being convicted. Such a
safeguard would not necessarily be corroboration, but
once the Court
decides that in order to be so satisfied it requires corroboration,
it would be pointless to look for corroboration,
other than
corroboration implicating the accused. See in this regard
S
v Nhlabathi & Another
1968(2)
SA 48 (A) at 50H-51A.
In
other words if corroboration is required, it is important that
corroborative evidence should implicate the accused, it should
not be
a neutral corroboration. In the present case, the court a
quo
found
that corroboration was necessary, as Christians "uiteindelik
be'indruk het, as klaarblyklik swakker tipe mense wat maklik
deur
ander... misbruik word...". The question is whether the evidence
which the court a
quo
found
to corroborate Christians' evidence, implicated any of the
applicants.
In
our view we are satisfied that there is a reasonable prospect that
another Court might come to a different conclusion regarding
the
probative value of Christians' evidence and whether his evidence was
sufficient to sustain a conviction. It follows, therefore,
that leave
to appeal should be granted. In the result the following order is
made:
The
late filing of leave to appeal application is hereby condoned.
Leave
to appeal to the Supreme Court of Appeal against conviction is
granted.
ZONDI,
J
NGEWU,
AJ
:
I agree.