S v Russel (K/S87/03) [2004] ZANCHC 100 (16 April 2004)

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[2004] ZANCHC 100
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S v Russel (K/S87/03) [2004] ZANCHC 100 (16 April 2004)

Reportable: Yes /
No
Circulate to
Judges: Yes / No
Circulate
to Magistrates: Yes / No
IN
THE HIGH COURT OF SOUTH AFRICA
(Northern
Cape Division)
Case
no: K/S 87/03
Date:
16 / 04/ 2004
In
the matter between:
Michael
Russel APPLICANT
And
The
State RESPONDENT
JUDGMENT
ON APPLICATION FOR LEAVE TO APPEAL
TLALETSI,
J
:
[1] This is an application for leave to appeal against
conviction. The applicant Michael Russel was convicted of the crime
of Rape
committed under the circumstances provided in
Section 51
of
the
Criminal Law Amendment Act
105 of 1997
,
(the Act) by the Regional Court. His case was referred to the High
Court for sentence in terms of
section 52(1)
(b) of the Act.
[2] A
certified record of the proceedings at the Regional court was, with
the consent of the state and the defence admitted as a true
reflection of the proceedings in that court and made part of the
record of the proceedings in this court.
[3] Advocate
Cloete who appeared on behalf of the applicant as well as Advocate
Van Dyk on behalf of the state were both given an
opportunity to
address the court on the merits of the case. I found the conviction
of the appellant by the Regional Court to be
in order and confirmed
it.
[4] The
record of the proceedings does not disclose that at any stage before
and during the trial the applicant was warned that the
state will be
relying on the provisions of the Act. The applicant confirmed
through his legal representative that he was at no stage
made aware
of this situation even though he was represented by an attorney at
his trial. On the authority of
S v
Ndlovu
2003(1)
SACR 331 (SCA) he was given the benefit of the doubt and the
provisions of the Act were not put into operation regarding
sentence.
He was sentenced to undergo an imprison term of 15 years. His
relevant previous conviction was taken into account.
[5] At the conclusion of the trial an instant verbal
application for leave to appeal against the conviction was made by
counsel on
behalf of the applicant. The grounds relied upon were:-
5.1 that the court erred by accepting the evidence of
the complainant as reliable;
that the court erred by rejecting the evidence of the
accused as not reasonably possibly true.
Only half hearted argument was presented to the Court in
a bid to substantiate the grounds relied upon or an attempt made for
this
Court to be satisfied that there are reasonable prospects of
success on appeal. See
R v Boya
1952 (3) SA 574
(CPD) at 577 B-C where
De
Villers JP
said the following:
g
It
seems to me that a reasonable prospect of success means that the
Judge who has to deal with an application for leave to appeal
must be
satisfied that on the findings of fact and conclusion of law involved
the Court of Appeal may well take a different view
from that arrived
at by a jury or by himself and arrive at a different conclusion.“
[6] The only submission made in support of the first
ground is that the complainant lied by pointing the applicant as the
person who
raped her and connived with other state witnesses in a
conspiracy against the accused. The application for leave to appeal
is opposed
by the state. It has been submitted on behalf of the
state that:
it
has not been shown by the applicant that there are reasonable
prospects of success;
that
the evidence of the complainant was corroborated by two other
witnesses and;
no suggestion of conspiracy was put to the witnesses
during the trial.
[7] The State evidence reveals that on the 25
th
December 2002 between 24h00 and 01h00 the complainant a 15 year old
girl was in the company of one David Kagona, Gale Afrika and
one Kay
on their way home. They were from Knockdown Tavern. They were
walking in a passage. The complainant and David Kagona stood
aside
and conversed. Gale Afrika and Kay walked further on. David Left
the complainant and walked towards the other two. The applicant
approached the complainant and offered to take her home. She
refused. Gale came nearer them. David returned to the complainant
and asked who the applicant was. The applicant claimed that the
complainant is his girlfriend. He slapped the complainant twice
on
her face telling her not to make him a fool by denying that she was
his girlfriend. The applicant left after the intervention
of Kay. At
a later stage the complainant was waiting at the gate when the
applicant approached her and pulled her to the veld where
he raped
her. On her return she met David and made a report to him. The
police were called and applicant was arrested at the Knockdown
Tavern.
[8] The
applicant‘s defence is a bare denial. He denies ever seeing any of
the state witnesses at the tavern and at the street.
He was at all
times at the tavern playing snooker. He alleged that one Tang who is
the brother to David called him outside and
accused him of raping a
person. They then assaulted him for no reason.
[9] After analyzing the evidence, the Magistrate had the
following to say:
g
Nou wat betref die klaagster se getuienis
is dit so dat sy haar getuiesnis hier op’ n redelik bevredigde wyse
afgelê het en dit
is ook so dat dit detail-getuienis is, oor die
gebeure van die betrokke aand.
Dit is ook so, soos
mnr. Swanepoel toegee, dat daar wel onwaarskynlikhede in haar
getuienis is. As sy nou al soveel deur die beskuldigde
geterroriseer
was soos sy sê, vind ‘n mens dit ‘n bietjie snaaks dat sy by die
huis waar daar ingegaan is, om koeldrank te gaan
koop, alleen buite
staan.
Aan die anderkant is sy nog ‘n
jong kind en werk haar verstand miskien nie soos die van ‘n meer
volwasse mens nie. Ook Gail Afrika
en David Kagona was getuies wat
hulle getuienis hier redelik breedvoerig afgelê het en war
beswaarlik die weeregawe wat hule gegee
het, uit hulle duim kon
gesuig het. Op die getuienis van die klaagster sowel as diè van
Gale, is dit vir my duidelik dat daar voldoende
tyd was om die
beskuldigde behoorlik te identifiseer. Hulle het by meer as een
geleentheid daar saam met die beskuldigde gaan staan
en gesels en
hoewel die ligte nie wonderlik was nie, was daar klaarblyklik
voldoende beligting, selfs vir hulle om te kon sien dat
die
beskuldigde swart en rooi tekkies aangehad het. As hulle instaat was
om te sien, dan sou hulle seer sekerlik ook instaat gewees
het om die
beskuldigde se gesig te identifiseer. Ek is tevrede dat ek die
klaagster se getuienis, soos gestaaf deur Gale Afrika
en David Kagona
kan aanvaar.“
[10] With regard to the evidence of the applicant, the
learned Magistrate said the following:
“
Die
beskuldigde se weergawe is eintlik ‘n blote ontkenning. Hy werk
inderwaarheid in alibi op deur te beweer dat hy die hele aand
te die
Knockdown Taverne was; dat hy nooit daar weg was nie en getuig hy
verder dat daar drie persone is wat sy getuienis in hiedie
verband
kan staaf. Ek vind dit tog hoogs onwaarskynlik dat die klaagster, as
sy hom nie eers gesien het nie, soos die beskuldigde
eintlik wil sê,
wat die geval is, nou vir hom sal uitsoek en hom valslik sal
impliseer by `n
verkragtingsaak.“
[11] The nearest that one could find as a suggestion of
a conspiracy against the applicant, is when applicant says that Tang
is the
brother of David Kagona, and he had a fight the previous night
with Tang and his friends. Applicant did not see David during this
fight. He did not see any of the state witnesses who were in the
company of the complainant. The complainant was also not present.

According to David the only time he saw a fight is when applicant was
confronted with the rape allegations.
[12] I find the conspiracy allegation to be unfounded.
As it was correctly argued it was not evenly raised during the
evidence.
I find the Magistrate’s approach to be in conformity
with the following dictum by the Supreme Court of Appeal in
S
v Chabalala
2003(1) SACR 134(SCA) at 139
I – 140 A:
“The correct approach is to
weigh up all the elements which point towards the guilt of the
accused against all those which are indicative
of his innocence,
taking proper account of inherent strengths and weaknesses,
probabilities on both sides and, having done so, to
decide whether
the balance weighs so heavily in favour of the State as to exclude
any reasonable doubt the accused’s guilt.”
[13] In conclusion I am of the view that applicant has
failed to demonstrate that on the findings of the fact or conclusions
of law
involved another court would come to a different conclusion.
The applicantion should therefore not succeed.
I make the following order:
The Application for Leave to Appeal is dismissed
.
________________
L
P TLALETSI
JUDGE
Counsel for the
applicant
Adv Cloete
Counsel for the
Respondent
Adv L Van Dyk
I therefore make the following order:
The application for leave is dismissed.
_____________________
L
P TLALETSI
JUDGE
On behalf of the
Applicant
Adv J Schreuder
On behalf of the
Respondent
Adv C Nekosi