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[2010] ZAWCHC 453
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Leibrandt v S (A286/2008) [2010] ZAWCHC 453 (31 August 2010)
IN
THE HIGH COURT OF SOUTH AFRICA
(WESTERN
CAPE HIGH COURT, CAPE TOWN)
CASE
NUMBER
:
A286/2008
DATE
:
31 AUGUST
2010
In the matter between:
DONOVAN
LEIBRANDT
…..................................................................
1
st
Appellant
LETOANE
RANTAL
…........................................................................
2
nd
Appellant
and
THE
STATE
….........................................................................................
Respondent
JUDGMENT
Application
for Leave to Appeal
HLOPHE,
JP
This
is
an
application for leave to appeal against the judgment of Motala and
Matojane JJ. Both judges are no longer active judges in this
division, hence the current composition of the bench, consisting of
myself and Acting Justice Samela.
We have heard
the argument advanced by both counsel. Mr
Marais
,
it is common cause, appeared for the appellants in this
matter. The
State was represented by Advocate
Swart
.
The judgment of the court a
quo
was
criticised by Mr
Marais
on various
grounds, including,
inter
alia,
the
fact that the Court seems to have placed weight on what was not the
evidence before the Court He was also critical of the judgment
of the
magistrate, in that that judgment, according to his submission, it
was not proved beyond any reasonable doubt, relying upon
circumstantial evidence, that indeed the accused was guilty of the
crimes preferred against them.
The
difficulty in my view with Mr
Marais
'
argument is, firstly, that there is no judgment which can ever be
perfect; and secondly, whilst sitting here as a court of appeal,
we
are at large to look at the evidence in total and we have read the
record. It is clear to my mind that the court
a
quo
correctly
came to the conclusion that the appellants were properly convicted
of the crime in question. I am not persuaded at all
that another
court, acting reasonably, can come to a different conclusion. In my
judgment, the judgment of the court a
quo
must
be confirmed and I would refuse leave to appeal on the basis that
there is no other court acting reasonably which can come
to a
different conclusion.
Accordingly I would refuse
leave to appeal against conviction.
SAMELA,
AJ: I agree
SAMELA,
AJ
HLOPHE.
JP:
That
is the order of Court
HLOPHE.
JP