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[2008] ZAWCHC 217
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Fortuin v S (A500/2006) [2008] ZAWCHC 217 (6 June 2008)
IN
THE HIGH COURT OF SOUTH AFRICA
(CAPE
OF GOOD HOPE PROVINCIAL DIVISION)
CASE
NO
:
A500/2006
DATE
:
6
JUNE 2008
In the matter between:
BURTON
FORTUIN
Applicant
AND
THE
STATE
Respondent
JUDGMENT
(Application
for Leave to Appeal)
MOOSA.
J:
This
is an application for leave to appeal to the Supreme Court of Appeal
against a decision of this Court to dismiss the appeal
against the
conviction of applicant in the Regional Court.
The
applicant was convicted in the Regional Court on a charge of rape and
sentenced to nine years imprisonment. The applicant denied
any
wrong
doing, the application for leave to appeal is opposed by the
respondent namely, the State. The grounds of appeat are set out
in
the notice of application for leave to appeal dated 21 May 2007,
Although
there are five grounds of appeal, as set out in the notice of
application for leave to appeal, Advocate
Marais
,
who appeared for the applicant, informed the Court that he is
essentially concentrating on two grounds; they are the first ground
namely, that the Honourable Court of Appeal misdirected itself by not
finding that the learned magistrate erred in dismissing the
application by the applicant's attorney for the recall of the
applicant; and the fifth ground, namely, that the Honourable Court
of
Appeal erred in not sufficiently taking into account that according
to Dr Trope some of the injuries that the complainant professed
to
have sustained could have been faked, and that some of the injuries
the complainant testified about were not seen and noted
by Trope.
Now
it is settled law for the applicant to succeed with his leave to
appeal he must satisfy this Court that he has reasonable prospects
of
success on appeal. In this regard see
R
v Nqubane and Others
1948 AD 185
at 186/7 and
S
v Ackermann en n Ander
1973(1)
SA 765(A) 767 g-h. This consideration applies to both the question
of law and fact. In this regard see
R
v Koswavo
1949(3)
SA 761(A).
This
Court has dealt fully, in its judgment, with all the issues which
have been raised in the grounds of appeal and also more particularly,
with the grounds as contained in 1 and 5 on which the appficant is
concentrating. There is, therefore, no reason for me to repeat
the
rationale of this Court in coming to its conclusion in respect of
those grounds. We have also heard the submissions by both
applicant's
and respondent's counsel
tn
connection
with this application.
After
careful consideration, I have not been persuaded that there are
reasonable prospects of success on appeal to the Supreme Court
of
Appeal, either on the question of law or fact. In the premises I am
of the view that the
APPLICATION
FOR LEAVE TO APPEAL TO THE SUPREME COURT OF APPEAL SHOULD BE
DISMISSED
,
and it is so ordered.
MOOSA,
J
I
agree,
MLONZI,
AJ