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2007
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[2007] ZANCHC 21
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S v Jacobs (K/S 2/05) [2007] ZANCHC 21 (9 March 2007)
Reportable: Yes /
No
Circulate to
Judges: Yes / No
Circulate
to Magistrates: Yes / No
IN THE HIGH COURT
OF SOUTH AFRICA
(Northern
Cape Division)
Appeal no: K/S 2/05
On roll : 23/02/ 2007
Date delivered: 09/03/ 2007
In
the matter between :
SAM JACOBS APPLICANT
and
THE STATE RESPONDENT
Coram:
Makhafola, AJ
LEAVE
TO APPEAL JUDGMENT
MAKHAFOLA,
A J:
The applicant herein was
arraigned in the Regional Court of Kimberley charged with rape and
alternatively with contravention of
Section 14 (1) (a) read with
Section 22 of Act 23 of 1957. The case was postponed several times
until the trial commenced on 30
April 2004.
The applicant at the trial
pleaded not guilty to the main and alternative charges and he did
not tender any plea explanation. He
was represented throughout the
proceedings.
An intermediary was appointed
in terms of
section 170(A)
of the
Criminal Procedure Act 51 of 1977
through whom the 10 year old complainant gave evidence.
At the end of the trial the
applicant was found guilty on the main charge of rape as charged.
The case was referred to this
High Court in terms of
Section 52(1)(b)
of Act 105 of 1997 for
sentencing. This Court (
Tlaletsi
J)
formally
convicted the applicant and proceeded to sentence him to ten (10)
years imprisonment.
The applicant has launched his
appeal to this court against both his conviction and sentence
outside the prescribed period of 14
days for leave to appeal
accompanied by an application for condonation. The application is
made in terms of Section 316(1)(a)
of the Act and is heard in terms
of the provisions of Section 316(2)(a)(i) of Act 51 of 1977.
In the court file there is
exchange of letters between the prison authorities, the Registrar of
this Court, the Magistrate Kimberley
and the Applicant personally
relating to the appeal. There is a letter written by the applicant
with no date on whereby he complains
about his appeal not being
attended to. The said letter is accompanied by a covering letter
from the Department of Correctional
Services, Aliwal North dated 07
February 2007. This letter is addressed to the Magistrate Kimberley
and was served on the Registrar
of this High Court on 16 February
2007.
I am alive to different
relevant factors to be considered when the application for
condonation is launched. In the end, the question
whether to
condone or not any late filing of an application is within the
discretion of the Court.
Vide: Veldman v Director of Public Prosecutions, WLD
2006 (2) SACR
319
(CC) at 326 [7]F.
This condonation consideration
is premised on the judicial discretion this Court has; the bulk of
the exchange of letters between
the applicant and the prison
authorities, the Magistrate Kimberley and the office of the
Registrar of this court; the quest to
give closure to the
application for leave to appeal on its merits; the interests of
justice, fairness and justness to all parties.
I found it expedient
in the circumstances to grant condonation so that leave to appeal
could be heard on the merits and be finalised.
Vide: S v Mohlathe 2000(2) SACR 530 (SCA).
It is also trite that the
overriding considerations to grant leave to appeal are prospects on
appeal regardless of the seriousness
of the crime and its
consequences which may be taken into account in borderline cases.
The applicant should show that there are
reasonable prospects that
the appeal may succeed.
Vide: R v Ngubane and others
1945 AD 185
at page 186.
R v Muller 1957(4) SA
642(A) at 645 G.
S v Ackerman en ân Ander 1973(1) SA 765 (A) at
676 G-H.
On the other hand leave to
appeal should not be granted in the hope that another court may view
the trial courtâs reasoning differently
or find error with the
trial Court.
Vide: S
v Shabalala 1966(2) S A 297 (A) 299 C.
In recent years the Supreme
Court of Appeal stated that leave to appeal should not be granted
merely to give an Appeal Court the
opportunity to rectify its
earlier judgment where a Court is satisfied that its judgment is
correct.
Vide: S v
Kgafela 2003(2) SACR 176 (SCA) at 178 a-b
In this matter now before
Court, I have perused and studied the record of the proceedings in
the Court of first instance, and the
final judgment and the sentence
meted out in this Court. I have found nothing wrong with the way
the proceedings had been conducted
by the learned Regional
Magistrate. There appears nothing to suggest that the trial court
has omitted any facts for consideration
or that it has in any manner
misconstrued facts or misdirected itself.
Vide: R v Dhlumayo and Another
1948 (2) SA 677
(AD) at pp 702,706.
S v Pillay
1977 (4) SA 531
[AD] at p 535 B.
During sentencing all aspects
that are required for considerations the court did take into
account. The accusedâs drunkenness
as having a diminishing effect
on a personâs reasoning capacity was also considered.
Vide: Judgment: Page 8: lines 16-20
The question of the triad was
also taken into account and by so doing the court referred to the
case of:
S v O
2003
(2) SACR 147
(C) at 150 G-H.
Vide: Judgment: Page 7:
lines 2-10
The sentencing court did not
close its eyes to the substantial and compelling circumstances and
it expressed its mindfulness of
the binding principles stated in the
case of
S v Malgas
2001 (1) SACR 469
(SCA).
The above having been stated I
come to the conclusion that there are no prospects of success on
appeal.
In the result, application
for leave to appeal against both the conviction and sentence is
refused.
______________________
MAKHAFOLA K
Acting Judge of the
High Court
Northern Cape Division
On behalf of the Appellant : Adv.
T Fourie
Instructed
by : Legal Aid Board, Kimberley
On
behalf of the Respondent: Adv. T Barnard
Instructed
by : Office of the D P P, Kimberley.