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[2009] ZANCHC 26
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Marietjie v S (CA&R 195/2003) [2009] ZANCHC 26 (29 May 2009)
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IN THE HIGH COURT OF
SOUTH AFRICA
(Northern Cape
Division)
Case
Nr:
CA&R
195/2003
Case
Heard:
26/05/2009
Date
delivered:
29/05/2009
In
the matter between:
D
annyboy
Marietjie APPELLANT
and
The
State
RESPONDENT
Coram:
Kgomo JP et Henriques AJ
JUDGMENT
Henriques
AJ:
This
is an application for leave to appeal to the Supreme Court of Appeal
against conviction and sentence. The appellant also seeks
condonation for the late filing of the application for leave to
appeal.
BACKGROUND
FACTS
The
appellant
was charged in the Griekwastad Regional Court for the rape of his
aunt, Ms M. At the time of the trial he pleaded not
guilty but was
convicted of rape and sentenced to 19 years imprisonment.
He
subsequently appealed against both his conviction and sentence. The
appeal was heard on 28 September 2004. Kgomo JP and Olivier
J came
to the conclusion that the conviction and sentence were in order and
dismissed the appeal on 1 October 2004.
CONDONATION
The
appellantâs application for leave to appeal has been brought some
four years after the appeal judgment was handed down.
The appellant
seeks condonation for his late filing. His explanation for such late
filing is that he is not familiar with the
legal processes and did
not know that he could take further steps after the appeal was
dismissed in 2004.
Having
regard to the judgement of Jafta JA in the decision of
S
v Mantsha
2009 (1) SACR 414
(SCA) at paragraph 11 the Court, in considering an
application for condonation, must take the following into account.
â
These
include the extent of non-compliance and the explanation given for
it; the prospects of success on the merits; the importance
of the
case; the respondentâs interest in the finality of the judgment;
the convenience of the Court and the avoidance of unnecessary
delay
in the administration of justice.
â
During
the c
ourse
of argument Advocate Cloete, who appeared for the appellant, was not
able to advance any further submissions apart from
those which
appeared in his heads of argument as regards both the merits and the
condonation. He also conceded that he could
not make any cogent
submissions that there was a reasonable possibility that another
Court could come to a different decision.
APPLICATION FOR
LEAVE TO APPEAL
The
application for leave to appeal is governed by the provisions of the
Criminal Procedure Act, 51 of 1977
read with the provisions of
section 21 of the Supreme Court Act, 59 of 1959.
Section 309(1)(a)
of the
Criminal Procedure Act provides
for a person who has been
found guilty in a Magistrateâs Court to appeal to the provincial
or local division having jurisdiction.
If such an appeal fails, he
or she must apply for leave to appeal to the Supreme Court of
Appeal.
At
the trial of the matter the
appellantâs
version was that he was asleep in the house at the time of the rape,
he did not hear anything and slept in the livingroom
which was a
very short distance away from the complainantâs bedroom. He slept
uninterrupted from approximately 10:00 pm at
night until the
following morning when he was rudely awakened by the Police. He did
not see the rape take place, and neither
did he hear the
complainantâs mother scream. He cannot understand why he was
arrested as he had nothing to do with the rape.
There
can be no doubt about the fact that the complainant was raped. The
medical report completed by the medical practitioner
did not exclude
the possibility of rape but also found that the abrasions and
bruising which the complainant had suffered to
her neck was
consistent with her evidence of being strangled. She and the other
state witnesses confirmed that they recognised
the appellant at the
time of the alleged rape. In fact the complainant not only
recognised his face but also recognised his voice.
She further
testified that the room was bright enough even though, it was night
time, for her to see her rapist, the appellant.
The
complainantâs evidence was corroborated by two of the State
witnesses who confirmed that they saw the
appellant
on top of her at the time of the rape. Despite the discrepancies in
their description of the clothing which the appellant
wore at the
time of the rape, they were adamant that he was the person who raped
the complainant.
In
addition the State witnesses corroborated each other in one crucial
aspect namely that at the time they came out of the room,
the
appellant was not lying in his usual place which he slept. There
can thus be no doubt about the fact that the appellant
was
responsible for the rape of the complainant.
As
far as the sentence is concerned, it
is
trite that a Court of appeal will only interfere with a sentence
where a material irregularity or misdirection has occurred
in the
consideration of sentence or where the sentence is shockingly
inappropriate (see
S
v Shaik and Others
[2007] ZACC 19
;
2008 (1) SACR 1
(CC) para [72]).
In
light of the above and having regard to the grounds upon which the
appellant
seeks leave to appeal to the Supreme Court of Appeal, I am of the
view that the appellant has not made out a proper
case for
condonation and also does not have any reasonable prospects of
success on appeal on the merits and I accordingly make
the following
order:
The application for
leave to appeal is dismissed.
________________________
J
I HENRIQUES
ACTING
JUDGE
NORTHERN CAPE
DIVISION
I agree:
________________________
F
D
IALE
KGOMO
JUDGE
PRESIDENT
NORTHERN CAPE
DIVISION
For the
Plaintiff:
Adv
P Fourie
On
behalf of
: Legal
Aid Centre, KIMBERLEY
For the
Respondent: Adv C Jansen
On
behalf of
: Director
of Public Prosecutions, KIMBERLEY