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[2011] ZASCA 18
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Hibbert v S (580/10) [2011] ZASCA 18 (15 March 2011)
THE
SUPREME COURT OF APPEAL OF SOUTH AFRICA
JUDGMENT
Case No: 580/10
In the matter between:
JAMES PATRICK HIBBERT
..........................................................
Appellant
and
THE STATE
....................................................................................
Respondent
Neutral citation:
Hibbert
v S
(580/10)
[2011] ZASCA 18
(15 March 2011)
Coram:
STREICHER, BOSIELO
and THERON JJA
Heard: 15 March 2011
Delivered: 15 March 2011
Summary:
Application for
leave to appeal against a High Court order refusing a petition for
leave to appeal.
_____________________________________________________________________
ORDER
On appeal from:
Western
Cape High Court (Cape Town) (Erasmus and Allie JJ sitting as court of
first instance.):
1. The order of the Western Cape
High Court (Erasmus and Allie JJ), dated 18 August 2009, is set
aside.
2. The appellant is granted leave
to appeal against his convictions and sentence.
___________________________________________________________
JUDGMENT
THERON JA (STREICHER and BOSIELO
JJA concurring)
[1] The appellant stood trial in
the Regional Court, Mossel Bay, on charges of sexual assault and
rape, read with the provisions
of Act 105 of 1997. The incident
giving rise to these charges being preferred against the appellant
was alleged to have occurred
during the period December 2004 to
January 2005. The appellant was charged on 30 May 2008. Despite his
plea of not guilty in respect
of both charges, the appellant was, at
the end of the trial found guilty and sentenced to an effective term
of imprisonment of
eight years.
[2] On 18 June 2009 and
immediately after judgment on sentence was delivered, the appellant
applied for leave to appeal against
the convictions. This application
was refused. The appellant subsequently petitioned the Western Cape
Judge President for leave
to appeal against the convictions and
sentence in terms of
s 309C
of the
Criminal Procedure Act 51 of 1977
.
On 18 August 2009, the Western Cape High Court (Erasmus and Allie JJ)
refused his petition.
[3] The appellant applied to the
high court for leave to appeal against its decision refusing leave to
appeal against his convictions
and sentence. The high court
apparently had second thoughts about its decision to refuse leave and
granted the appellant leave
to appeal to this court against the high
court’s refusal of his petition.
[4] At the hearing of this
appeal, counsel for the state conceded that there was a reasonable
possibility that another court could
reach a different conclusion to
that of the trial court. No more need be said.
[5] In the circumstances the
following order is made:
5.1 The order of the Western Cape
High Court (Erasmus and Allie JJ), dated 18 August 2009, is set
aside.
5.2 The appellant is granted
leave to appeal against his convictions and sentence.
____________________
L Theron
Judge of Appeal
APPEARANCES
APPELLANT: DL van der Merwe
Instructed by Heyns &
Partners Inc, Cape Town;
Naudes, Bloemfontein
RESPONDENT: (Ms) EA Kortje
Instructed by the Director of
Public Prosecutions, Cape Town;
The Director of Public
Prosecutions, Bloemfontein