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[2017] ZASCA 101
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Karpovska v S (1396/2016) [2017] ZASCA 101 (24 August 2017)
THE
SUPREME COURT OF APPEAL OF SOUTH AFRICA
JUDGMENT
Not
reportable
Case
no: 1396/2016
In
the matter between:
KATERYNA
KARPOVSKA
APPELLANT
and
THE
STATE
RESPONDENT
Neutral
citation:
Karpovska
v
The
State
(1396/2016)
[2017] ZASCA 101(24 August 2017)
Bench:
Bosielo, Majiedt,
Petse and Saldulker JJA and Lamont AJA
Heard:
16 August 2017
Delivered:
24 August 2017
Summary:
Appeal –
application for leave to appeal against convictions dismissed by
regional magistrate - petition refused by the court
a quo- special
leave to appeal against the dismissal of petition granted to Supreme
Court of Appeal – whether leave to appeal
ought to have been
granted by court a quo - whether there are reasonable prospects of
success.
ORDER
On
appeal from
:
Western Cape High Court, Cape Town
(Saldanha and Baartman JJ):
The
appeal against the refusal of the petition in respect of counts 1 and
4 is dismissed.
JUDGMENT
Saldulker
JA (Bosielo, Majiedt, Petse JJA and Lamont AJA concurring):
[1]
The appellant was indicted in the Bellville Specialised Commercial
Court on four counts of fraud and one count of contravening
the
Prevention of Organised Crime Act 121 of 1998
and one count of
contravening the
Financial Advisory and Intermediary Services Act 37
of 2002
.
[2]
She was convicted on three counts of fraud and acquitted on all the
other charges. On count 1 she was sentenced to eight years'
imprisonment wholly suspended for a period of five years on condition
that she was not convicted of an offence involving fraud
or theft
committed during the period of suspension, and on the further
condition that she repays the complainant the sum of R1,
755 million
on or before 28 February 2014. On counts 3 and 4 she was sentenced to
three years correctional supervision in terms
of
s 276
(1)
(h)
of the
Criminal Procedure Act 51 of 1977
.
[3]
An application for leave to appeal against the convictions was
dismissed by the regional magistrate. The appellant petitioned
the
Western Cape High Court, Cape Town (the high court) and leave to
appeal was granted in respect of count 3 only. An application
for
special leave to appeal against the refusal of the petition in
respect of counts 1 and 4 was granted by this court.
[4]
The crisp issue to be determined in this matter is not whether the
appeal on the merits should succeed or not, but whether leave
to
appeal should have been granted by the court a quo. This requires us
to determine whether the court a quo should have granted
the petition
or not.
[5]
Leave to appeal has already been granted against the appellant’s
conviction on count 3 by the high court. The question
is thus whether
the appellant has established that there are reasonable prospects of
success in an envisaged appeal against the
convictions on counts 1
and 4. The most recent decision concerning this issue is
S
v Radebe.
[1]
[6]
We do not find it necessary to deal with the merits of this matter in
any great detail, save to consider whether there are reasonable
prospects of success or not. In respect of count 1: the trial court
in a very carefully reasoned judgment set out all the relevant
facts
and rejected the evidence of the appellant and accepted the evidence
of the complainant. The complainant’s evidence
was correctly
accepted as credible by the magistrate and was corroborated by
voluminous documents which were produced in evidence.
The entire
weight of the evidence was considered fully by the magistrate who, in
such consideration, reached the conclusion that
the evidence of the
complainant was to be accepted and that the evidence of the appellant
fell to be rejected as false beyond reasonable
doubt.
[7]
The trial court made credibility findings with which this court will
not readily interfere. The magistrate's assessment of the
evidence
accords with the probabilities to be attached to such evidence, which
evidence established the guilt of the appellant
beyond a reasonable
doubt. Thus there is no reasonable prospects of success on count 1.
[8]
On count 4: the facts were largely common cause. The trial court
carefully considered all the evidence. It accepted the complainant’s
version and rejected the defence raised by the appellant on the basis
that no duress had been established. There is no reason to
interfere
with this finding. Thus there is no reasonable prospects of success
in respect of count 4.
[9]
In the result the following order is made: The appeal against the
refusal of the petition in respect of counts 1 and 4 is dismissed.
H
K SALDULKE
JUDGE
OF APPEAL
Appearances:
For
the Appellant:
A A Mia
Instructed by:
William Booth Attorneys,
Cape Town
Hanno Bekker Attorneys,
Bloemfontein
For
the Respondent:
F J Vogel
Instructed by:
The Director of Public
Prosecutions, Cape Town
The
Director of Public Prosecutions, Bloemfontein
[1]
S v
Radebe
[2016]
ZASCA 172
;
2017 (1) SACR 619
(SCA).