About SAFLII
Databases
Search
Terms of Use
RSS Feeds
South Africa: High Court, Northern Cape Division, Kimberley
SAFLII
>>
Databases
>>
South Africa: High Court, Northern Cape Division, Kimberley
>>
2022
>>
[2022] ZANCHC 67
|
|
Olyn v S (K/S 20/2017) [2022] ZANCHC 67 (28 October 2022)
IN
THE HIGH COURT OF SOUTH AFRICA
(NORTHERN
CAPE DIVISION, KIMBERLEY)
CASE
NO.: K/S 20/2017
Date
delivered: 28-10-2022
Reportable:
Yes/No
Circulate
to Judges: Yes/No
Circulate
to Magistrates: Yes/No
In
the matter between:
Isak
Olyn Applicant
And
The
State Respondent
CORAM:
WILLIAMS J:
J
U D G M E N T
WILLIAMS
J:
1.
On 20 March 2018 the applicant, Mr Isak
Olyn, was convicted of murder and attempted rape and sentenced to
life imprisonment and
10 years imprisonment respectively. This
is an application for leave to appeal against the convictions and the
sentence of
life imprisonment imposed. The application for
leave to appeal is accompanied by an application for condonation for
the late
filing of this application.
2.
As reasons for the delay, the applicant
contends that he was transferred to Mangaung Correctional Centre
after being sentenced and
that it was difficult to establish contact
with his legal representative. He eventually had to apply for
legal aid afresh
in order to expedite the application for leave to
appeal. Mr Rosenberg for the State does not oppose the
application for
condonation and confirms the difficulties which
sentenced offenders encounter when transferred to a different
province. In
the circumstances I am satisfied that condonation
be granted.
3.
With regard to the convictions, the
applicant merely states that there is a reasonable prospect that
another court on appeal may
come to a different conclusion on the
evidence presented.
4.
S17
(1)(a)(i) of the
Superior Courts Act
10 of 2013
, however states that:
“
(1)
Leave to appeal may only be given where the judge or judges concerned
are of the opinion that –
(a)(i)
the appeal
would
have a reasonable prospect of success.”
(Own
emphasis)
5.
The bar has therefore now been
raised with respect to the test to be applied to the merits of the
proposed appeal. That being
said I now turn to the merits
in
casu.
6.
In the trial the respondent presented
evidence that the deceased was in the company of the applicant the
night before her body was
found. He had told a state witness
that he wanted to have sexual intercourse with her. After the
deceased left the
applicant’s house, he disappeared for a few
hours. Early the next morning the deceased’s body was
found next
to the railway line. She was tied to the railway
line with a shoelace which was shown to have the applicant’s
DNA on
it. She also had the applicant’s DNA under her
fingernails. The deceased had scratchmarks around the pubic
area,
lower abdomen and left thigh, indicative of an attempted rape.
7.
In his defence the applicant testified
that he had gone to sleep after the deceased had left his house and
that they had not touched
each other at all. He could not
explain why his DNA was found on the murder scene. He made a
very bad impression as
a witness.
8.
On the evidence described above there
are no prospects of success on appeal.
9.
As far as the sentence of life
imprisonment is concerned the following factors are relevant.
The applicant had been convicted
previously of murder and rape and
had been out on parole when he committed the offences
in
casu
. He was related to the
deceased (her uncle). The evidence pointed toward the offences
being planned and premeditated.
There were no substantial and
compelling circumstances present which would have justified the
imposition of a lesser sentence than
the prescribed life
imprisonment.
In
the premises, the application for leave to appeal is dismissed.
CC
WILLIAMS
JUDGE
For
Applicant:
Mr
P Fourie
Legal
Aid South Africa
For
Respondent:
Adv.
J Rosenberg
Office
of the DPP