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
>>
2005
>>
[2005] ZAFSHC 88
|
|
Knoesen v S [2005] ZAFSHC 88 (28 July 2005)
IN THE HIGH COURT
OF SOUTH AFRICA
(ORANGE FREE STATE
PROVINCIAL DIVISION)
Appeal No.: A444/2003
In
the case between:
MR W D
KNOESEN
Applicant
and
THE STATE
Respondent
_____________________________________________________
CORAM:
BECKLEY J
et
EBRAHIM J
JUDGMENT:
EBRAHIM J
HEARD ON:
24 JUNIE 2005
_____________________________________________________
DELIVERED ON:
28 JULY 2005
_____________________________________________________
[1] This is an
application for leave to appeal to the Supreme Court of Appeal
against conviction and sentence. The applicant was
convicted of
theft and sentenced to 36 months imprisonment on the basis of a case
based solely on circumstantial evidence. In bringing
the application
it is the applicantâs main contention that the trial court had
failed to properly distinguish between mere speculation
and the
proper drawing of inferences from the proven facts. In addition the
applicant contends that this court erred in confirming
the trial
magistrateâs finding that the applicantâs version could not
reasonably possibly be true and that the only reasonable
inference be
drawn from the circumstantial evidence was that it was the applicant
was had conspired to steal the petrol in question.
[2] I
am of the view that there is no reasonable prospect that another
Court would conclude otherwise on the evidence for the following
reasons:
2.1 It was conceded by
the applicantâs counsel, Mr Nel, that it could only have been the
applicant or his son who conspired with
Assegai to steal the petrol.
That being so, it is highly improbable that had it been the son and
not the applicant who was involved,
the son would not have made firm
and fixed arrangements with Assegai as to where and when delivery
would take place, alternatively
that the son would not have ensured
that he would be accessible when delivery was to be made. That he
was nowhere to be found and
could not be reached militates against
the conclusion being drawn that it was he who was to receive delivery
of the petrol.
Having received the
petrol, the applicant made no mention of this fact at all to his
son but choose instead to consult his attorney
about the delivery.
Had he in fact believed that the delivery was a
bona
fide
one done in the course of ordinary business, it would have been the
obvious thing for him to do since his son was in charge of
the
running of the business and, according to the applicant, payment
for the petrol still had to be made. That he did not discuss
the
matter at all with his son indicates his son had nothing to do with
the transaction.
[3] As regards the
sentence, I am of the view that the application
is
without merit. The learned magistrate had due regard to the evidence
of two expert witnesses namely, Mrs. Steyn a social worker
and Miss
Hlahane a correctional Supervision Officer from the Department of
Correctional Supervisions, both of whom categorically
excluded
correctional supervision as a possible sentence in the case of the
applicant for good reason. Accordingly there was no
reason why the
learned trial magistrate ought to have ignored their recommendations
and imposed a sentence of correctional supervision.
I cannot fault
his exercise of his
discretion.
I find that there are no
reasonable prospects of success of an appeal in this matter.
The application is therefore
dismissed.
_____________
S. EBRAHIM, J
I
concur.
______________
A.P.
BECKLEY, J
On
behalf of appellant: J. Nel
Instructed
by
Rossouws
Attorneys
BLOEMFONTEIN
On
behalf of respondent: Director: Public Prosecutions
BLOEMFONTEIN
/em