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IN THE HIGH COURT OF SOUTH AFRICA
HELD AT MAKHANDA
CASE NO: CC58/2024
In the matter between:
THE STATE
And
X[…] M[…] ACCUSED
JUDGEMENT: APPLICATION FOR LEAVE TO APPEAL
NKELE AJ:
INTRODUCTION :
1. Mr M[...] applied for leave to appeal against both his conviction and
sentence imposed by me on the 11th of July 2024. The application for
leave to appeal is being opposed by the State.
2. HC M[...] was convicted on count one, the charge of rape, and acquitted
on count two, the charge of showing pornographic material to a minor. In
respect of count one he was sentenced to life imprisonment.
LEAVE TO APPEAL: THE PREVAILING LEGAL POSITION
3. Section 17(1)(a) of the Superior Courts Act Action1 regulates applications
for leave to appeal and it provides that:
“Leave to appeal may only be given where the judge or judges concerned are
of the opinion that –
(i) the appeal would have a reasonable prospect of success; or
(ii) there is some other compelling reason why the appeal should be heard,
including conflicting judgments on the matter under consideration.”
4. Recent jurisprudence, on the test for application for leave to appeal,
reveals that the change of wording from “might ” to “would” has resulted
into a higher test than previously applied. The Supreme Court of Appeal in
the Judgment of MEC for Health, Eastern Cape v Mkhitha eloquently
explained the effect of the amendment of section 17(1)(a) as follows:
[16] “ Once again it is necessa ry to say that leave to appeal, especially to
this court, must not be granted unless there is truly a reasonable prospect
of success. Section 17(1)(a) of the Superior Courts Act 10 of 2013 makes
it clear that leave to appeal may only be given where the jud ge concerned
is of the opinion that the appeal would have a reasonable prospect of
success; or there is some other compelling reason why it should be heard.
[17] an applicant for leave to appeal must convince the court on proper
grounds that there is a re asonable prospect or realistic chance of on
1No. 10 of 2013 .
appeal. A mere possibility of success, an arguable case or one that is not
hopeless, is not enough. There must be a sound, rational basis to
conclude that there is a reasonable prospect of success on appeal.
[18] in this case the requirements of Section 17(1)(a) of the Superior
Courts Act were simply not met…” .2
5. A mere possibility that another Court might come to different conclusion is
not enough to convince the trial Court to grant leave to appeal. In this
regard the Supreme Court of Appeal stated the following:
“What is the test of reasonable prospects of success postulates is a
dispassionate decision, based on the facts and the law, that a court of
appeal could reasonably arrive at a conclusion different to that of the trial
court. In order to succeed, therefore, the appellant must convince this
court on proper grounds that he ha s prospects of success on appeal and
that those prospects are not remote but have a realistic chance of
succeeding. More is required to be established than that there is a mere
possibility of success that the case is arguable on appeal or that the case
cannot be categorised as hopeless. There must, in other words, be a
sound, rational basis for the conclusion that there are prospects of
success on appeal”.3
6. It is for this Court to, with an open and honest reflection on the facts and
the law, reconsider the evidence and the appellant’s argument in deciding
whether to grant leave to appeal. In doing so, the appellant urged this
Court to adopt a holistic approach in evaluating the evidence.
ANALYSIS AND DISCUSSION
7. The appellant, in general, argued that the court erred in finding that State
proved its case beyond reasonable doubt and in accepting the evidence of
2 [2016] ZASCA 176 paras 16 -18
3 S v Smith 2012 (1) SACR 567 (SCA) para 7.
the witnesses as reliable and truthful. He further argued that th e evidence
of the witnesses was replete with errors and contradictions such that the
court should have given the accused the benefit of doubt. Because the
witnesses contradicted each other, their evidence could not reasonably
and possibly be true. For that reason, the appellant argues, the State has
failed to prove its case against the accused beyond reasonable doubt. On
that basis, the appellant submits that an appeal court will come to different
conclusion and find him not guilty.
8. The appellant further a rgued that the sentence imposed is too severe and
that a sentence of 25 years imprisonment should have imposed. For that
reason, the appellant argued, another Court can come to a different
conclusion regarding both the conviction and sentence. This is so, the
appellant submits, because there are substantial and compelling
circumstances for the Court to deviate from the minimum sentence
prescribed by legislation.
9. On the other hand, the State vehemently opposes the application for leave
to appeal sought by t he appellant. The State argued that the evidence of
the witnesses has been consisted throughout in all material respects and
that all relevant evidence that point to the accused as the perpetrator has
been presented and considered by the Court. As far as t he sentence is
concerned, the State argued that the Court was correct in imposing
minimum sentence of life imprisonment in line with the governing
legislation.
10. It is trite that although a cautious approach needs to be adopted by the
court when considerin g the evidence of a minor, it does not mean that the
accused cannot be convicted on the basis thereof when such evidence is
clear, reliable and even corroborated by other evidence. In this case the
minor gave reliable evidence and was consistent throughout that her
father, the appellant , raped her. Her evidence was corroborated by other
witnesses who testified that the appellant kissed, touched her
inappropriately, got an erection, thereafter dragged her and the minor cried
complaining that she does not like that which her father want to do to her.
Furthermore, her evidence was collaborated by medical evidence to the
effect that she had been vaginally penetrated and therefore no longer a
virgin. Thereafter the evidence presented during trial po int to the appellant
as the perpetrator and he has failed to present any evidence to exonerate
himself from blame .
11. As far as the sentence is concerned, there are substantial and compelling
circumstances that were demonstrated to convince the Court to deviate
from the minimum sentence prescribed by the governing legislation. Even
in the application for leave to appeal n one whatsoever have been
demonstrated.
12. Instead, the aggravating circumstances far outweigh the mitigating
circumstances, especially the fact that the perpetrator of the rape is the
father of the victim and that she was six years old at the time the offence
was committed. All the authorities point to one direction, which is that the
appropriate sentence is life imprisonment.
13. The aggravating circumstances, in particular, are that: the appellant is the
biological father of the com plainant; he was supposed to protect her; he
was in a position of trust vis -à-vis the complainant; the complainant was
only six years old when she was sexually violated. For the above stated
aggravating circumstances I am of the view no substantial and com pelling
reasons have been demonstrated to convince the Court to deviate from
imposing the prescribed sentence of life imprisonment.
14. In any event the rape of a woman, and a child in particular, is a very
serious offence which deserves a serious punishment as prescribed in the
minimum sentence legislation. In this regard I echo the sentiments
expressed by the Supreme Court of Appeal in the matter of DPP, North
Gauteng v Thabethe that “Rape of women and children have become
cancerous in our society. It is th e crime that threatens the very foundation
of our nascent democracy, which is founded on protection and promotion
of the values of human dignity, equality and advancement of human rights
and freedom. It is such a serious crime that it evokes strong feeling s of
revulsion and outrage amongst all right –thinking and self -respecting
members of society. Our Courts have an obligation to impose a sentence
for such a crime particularly where it involves defenceless and vulnerable
gender. A failure to do so would regrettably have the effect of eroding the
public confidence in the criminal justice system ”.4
15. Furthermore, in S v SMM the Supreme Court of Appeal emphasised those
sentiments as follows: -
“Our country is plainly facing a crisis of epidemic proportions in respect of
rape, particularly of young children. The rape statistics induce a sense of
shock and disbelief. The concomitant violence in many rape incidents
engenders resentment, anger and outrage. Government has introduced
various p rogrammes to stem the tide, but sexual abuse of particularly
women and children continues unabated ”.5
16. I whole hearted ly agree with sentiments expressed by the Supreme Court
of Appeal and I align myself with them. Accordingly, I come to the
conclusion th at it would be a grave injustice to exonerate the accused, in
the factual circumstance of the case . Leave to appeal should thereafter be
refused
CONCLUSION
17. The minimum sentence regime binds this Court to impose the specific
minimum sentence of life imprisonment and it can only deviate therefrom if
substantial and compelling circumstances have been shown to exist. I
have not found any substantial and compelling circumstances evidence to
deviate from the prescribed minimum sentence. The sentence of life long
imprisonment is a consequence of the conviction for a rape of a minor. No
42011 (2) SACR 567 (SCA) at 577 G -I.
5 2013 (2) SACR 292 (SCA).
reasonable prospects of success have been demonstrated in the
application for leave to appeal. I therefore come to the con clusion that no
Court, sitting as Court of appeal, would come to a different decision on the
same set of facts.
ORDER.
1. I therefore make the following order:
2. Leave to appeal for both conviction and sentence is dismissed.
__________________________
TA NKELE
ACTING JUDGE OF THE HIGH COURT
Date reserved: 11 December 2024
Date delivered: 11 February 2025
Counsel for the Appellant : Mr Geldenhuys
Instructed by legal Aid South Africa
Counsel for the State: M s Turner
Director of Public Prosecutions, Makhanda