About SAFLII
Databases
Search
Terms of Use
RSS Feeds
South Africa: Free State High Court, Bloemfontein
SAFLII
>>
Databases
>>
South Africa: Free State High Court, Bloemfontein
>>
2011
>>
[2011] ZAFSHC 201
|
|
Barnard v S (P87/11) [2011] ZAFSHC 201 (8 December 2011)
FREE STATE HIGH
COURT, BLOEMFONTEIN
REPUBLIC OF SOUTH
AFRICA
Case No. : P87/11
In the matter between:-
MORNé
BARNARD
…...................................................
Applicant/Appellant
and
THE STATE
…...........................................................................
Respondent
_______________________________________________________
CORAM:
HANCKE
et
KRUGER, JJ
_______________________________________________________
HEARD ON:
2
DECEMBER 2011
_______________________________________________________
JUDGMENT BY:
HANCKE, J
_______________________________________________________
DELIVERED:
8 DECEMBER 2011
_______________________________________________________
[1] This is an
application for leave to appeal against the dismissal of applicant’s
petition under
section 309C
of the
Criminal Procedure Act, 51 of
1977
, by Kruger, J and Moloi, J. Because Moloi, J is at present at
Circuit Court Kruger, J requested me to sit with him in this
application
in order to finalise it before the end of the year.
[2] The applicant was
convicted and sentenced in the Regional Court. Leave to appeal was
refused by the Regional Magistrate, and
therefore his petition was
turned down by this court. In order to obtain leave to approach the
Supreme Court of Appeal, the applicant
must ask this court for leave
to appeal against the dismissal of his petition (
KHOASASA v S
[2002] 4 ALL SA 635
(SCA)
S v KHOASASA
2003 (1) SACR
123
(HHA) at paras [19] – [22]).
[3] The applicant was
convicted of rape and sentenced to fifteen years imprisonment. As far
as the conviction is concerned, it is
submitted on behalf of the
applicant that in considering the applicant’s petition, the
court erred in not finding that there
is a possibility that another
court might find that
3.1 the trial court
misdirected itself in not properly evaluating the evidence in a
holistic manner, with due regard to the negative
and positive aspects
in both the State and the defence cases;
3.2 the trial magistrate
did not approach the evidence of the complainant with the necessary
caution justified by the specific circumstances
of the matter;
3.3 the trial court erred
in not finding that the version of the complainant is properly
supported by the evidence of the other
state witnesses;
3.4 the trial court
misdirected itself in finding that the applicant answered questions
in an evasive manner;
3.5 the trial magistrate
erred in finding that the version of the applicant cannot reasonably
possibly be true;
3.6 the trial court
misdirected itself by apparently rejecting the evidence of the
applicant on the basis that the evidence of the
state witnesses is
accepted as satisfactory and correct.
[4] As far as sentence is
concerned, it is submitted that this court erred in not finding that
there is a reasonable possibility
that another court might find that
there exist substantial and compelling circumstances which justify
the imposition of a lesser
sentence than the prescribed minimum and
that the imposed sentence of fifteen years imprisonment is unduly
excessive and shockingly
inappropriate in the circumstances. It is
also submitted that the trial magistrate misdirected itself in
several respects. Another
court might therefore find that there were
misdirections or that the effective sentence is shockingly
inappropriate.
[5] There are reasonable
prospects that another court can come to a different conclusion
regarding the dismissal of the petition.
[6] An appeal from an
order of two judges of this court cannot be heard by the full court,
and must be heard by the Supreme Court
of Appeal. (See
S v
MCMILLAN
2001 (1) SACR 148
(W) at 151 J par. [11] per Cloete,
J.)
[7] As to the correct
order to be issued, see
DE SOUSA v THE STATE
(Case No.
334/11 delivered by the SCA on 29 November 2011).
ORDER
[8] Leave is granted to
the applicant to appeal to the Supreme Court of Appeal against the
dismissal of his petition.
________________
S.P.B. HANCKE, J
I agree.
____________
KRUGER, J
On behalf of applicant:
Adv. J. Nel
Instructed by:
Pie-ér Huggett Inc
BLOEMFONTEIN
On behalf of respondent:
Adv. A. Bester
Instructed by:
Director: Public
Prosecutions
BLOEMFONTEIN
/sp