About SAFLII
Databases
Search
Terms of Use
RSS Feeds
South Africa: Supreme Court of Appeal
SAFLII
>>
Databases
>>
South Africa: Supreme Court of Appeal
>>
2019
>>
[2019] ZASCA 54
|
|
Maqhula v S (508/18) [2019] ZASCA 54 (1 April 2019)
SUPREME
COURT OF APPEAL OF SOUTH AFRICA
JUDGMENT
Not Reportable
Case
No: 508/18
In
the matter between:
MAMELA
MAQHULA APPELLANT
and
THE
STATE RESPONDENT
Neutral
citation:
Mamela
Maqhula
v
The
State
(508/18)
[2019] ZASCA 54
(1
April 2019)
Coram:
Majiedt,
Mathopo, Mocumie and Makgoka JJA and Mokgohloa AJA
Heard:
15
March 2019
Delivered:
01
April 2019
Summary
:
Criminal Procedure - appeal against conviction - leave to appeal
refused by regional magistrate - petition refused by the court
a quo
- special leave to appeal against conviction granted by the Supreme
Court of Appeal - Section 309 of the Criminal Procedure
Act - whether
leave to appeal ought to have been granted by high court.
ORDER
On
appeal from:
Eastern
Cape Division of the High Court, Grahamstown (Eksteen J and Jaji AJ
sitting as court of appeal):
1 The appeal is
upheld.
2 The order of the
Eastern Cape Division of the High Court, Grahamstown refusing leave
to appeal is set aside and replaced with
the following:
‘
The
appellant is granted leave to appeal to the Full Bench of the Eastern
Cape Division of the High Court, Grahamstown against her
conviction
of common assault.’
JUDGMENT
Mokgohloa
AJA (Majiedt, Mathopo, Mocumie and Makgoka JJA concurring):
[1]
The appellant was arraigned together with her two brothers in the
regional court, Port
Elizabeth, on charges of assault with intent to do grievous bodily
harm and kidnapping. She was convicted on
the competent verdict of
common assault and acquitted on kidnapping. Her brothers were both
convicted as charged. She was sentenced
to 18 months’
correctional service in terms of s 276(1)
(h
)
of the Criminal Procedure Act 51 of 1977 (the CPA)
[1]
.
[2]
The magistrate refused the appellant leave to appeal against
conviction. Her petition to the Eastern Cape Division of the High
Court, Grahamstown (the high court) in terms of s 309C
of
the CPA was unsuccessful. Special leave to appeal against the
dismissal of the petition against her conviction was granted to
this
court.
[3]
Before us the question is whether or not leave to appeal should have
been granted by the high court.
[2]
The test to be applied is whether there are reasonable prospects of
success in the intended appeal and not the appeal itself
[3]
.
[4]
The issue in this case is whether the appellant poured hot water on
the complaint who was tied to a pole by her brothers. There
are
contradictions in the complainant’s version in that he stated
in his statement to the police that the appellant poured
hot water on
his feet, yet in court he testified that the hot water was poured on
his genitals.
[5]
In evaluating the evidence, the magistrate found that ‘the
complainant did not make a good impression to this court. He
seemed
to want to rush through his evidence as if he just wanted to finish
it as soon as possible. It was difficult to put pieces
of what he was
saying together.’ The court found that there were
contradictions between the complainant’s statement
and his
testimony in court.
Regarding
the evidence of
the
complainant’s mother, the magistrate remarked that she was not
an impressive witness either. The court correctly found
that both
these witnesses exaggerated the injuries.
[6]
Counsel for the appellant contended that there are reasonable
prospects of success on appeal on the grounds that there is no
objective evidence that the appellant poured hot water on the
complainant’s genital area. Furthermore, he correctly pointed
out that the medical evidence does not support the complainant’s
evidence to this effect. The doctor did not note on the
J88 any
injuries of this nature. Counsel contended further that it is
improbable that the complainant would not sustain any injury
as a
result of hot water being poured over him around his genital area.
[7] The respondent’s
counsel on the other hand, argued that the complainant testified that
he did not suffer injuries as a
result of the assault. His genital
area was only itchy and did not require medical treatment. According
to counsel, it was highly
probable that the complainant’s
clothing absorbed some of the impact of the water which was not
boiling and he was therefore
not burnt or scalded.
[8]
Taking into consideration the contradictory evidence, and the fact
that the medical evidence does not support the complainant’s
evidence that hot water was poured on his genitals, there is a
reasonable prospect that another court may find that the appellant
did not pour any water on the complainant, at all.
[9]
Accordingly the following order is made:
1 The appeal is
upheld.
2 The order of the
Eastern Cape Division of the High Court, Grahamstown refusing leave
to appeal is set aside and replaced with
the following:
‘
The appellant
is granted leave to appeal to the Full Bench of the Eastern Cape
Division of the High Court, Grahamstown against her
conviction of
common assault.’
___________________
FE
MOKGOHLOA
ACTING
JUDGE OF
APPEAL
APPEARANCES
For
the Applicant: P W Nel
Instructed
by: Legal Aid South Africa, Port Elizabeth
Legal
Aid South Africa, Bloemfontein
For
the Respondent: S Hendricks
Instructed
by: Director of Public Prosecutions, Grahamstown
Director
of Public Prosecutions, Bloemfontein
[1]
Criminal
Procedure Act 51 of 1977
[2]
S v
Khoasasa
[2002] ZASCA 113
;
2003 (1) SACR 123
(SCA), S v Kruger
[2013] ZASCA 198; 2014
(1)
SACR
647 (SCA)
[3]
S v Smith
2012 (1) SACR 567
(SCA) para 3