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FORM A

FILING SHEET FOR EASTERN CAPE HIGH COURT, GRAHAMSTOWN JUDGMENT

 

 

                                                                             ECJ:

 PARTIES:              SAMSON MHLAMBISO                                     Applicant

                                             And

                                       THE STATE                                     Respondent

           

• Registrar:       CC68/10

• Magistrate:

• High Court:     EASTERN CAPE HIGH COURT, GRAHAMSTOWN

 

DATE HEARD:                    14/10/10            

DATE DELIVERED:     28/10/10

JUDGE(S):               BESHE J

LEGAL REPRESENTATIVES –

 

Appearances:

for the Applicant(s):                 ADV: M Xozwa

for the Respondent(s):             ADV: S Hendricks

 

Instructing attorneys:

 for the Applicant(s):                 LEGAL AID BOARD (GHT)

 for the Respondent(s):            DIRECTOR OF PUBLIC PROSECUTION (GHT)

 

CASE INFORMATION -

         Nature of proceedings     :          APPLICATION FOR LEAVE TO APPEAL

IN THE HIGH COURT OF SOUTH AFRICA

EASTERN CAPE – GRAHAMSTOWN

CASE NO.: CC 68/10

In the matter between:

SAMSON MHLAMBISO …..........................................................................Applicant

And

THE STATE ….........................................................................................Respondent

JUDGMENT – APPLICATION FOR LEAVE TO APPEAL

BESHE J:

[1] The applicant was convicted of three (3) counts of rape relating to a 9 year old girl.

[2] He is now seeking leave to appeal against the convictions.

[3] The application is based on the grounds that:

The court order erred:

1. In finding that the state proved its case beyond reasonable doubt in respect of all the counts;

In accepting the evidence of the complainant and finding that her explanation why she lied was reasonable;

In not taking proper cognisance of the fact that she confirmed under cross-examination that her mother told her not to tell anyone that the accused raped her, whereas she denied that she told her mother she was raped;

In accepting that the two cardinal rules of logic were satisfied;

In finding that the injuries as depicted in form J88 corroborate complainant’s evidence as to dates and manner in which the assaults took place; and

In finding that applicants’ version was improbable to the extent that it could be rejected as not being reasonably possibly true.

[4] It was argued on behalf of the applicant by Mr Xozwa that a reasonable prospect exists of another court coming to a different conclusion.

[5] The application was opposed by the state, Ms Hendricks arguing that there were no reasonable prospects of another court coming to a different conclusion.

[6] She submitted that although complainant was a single witness, there was corroboration of her evidence by inte alia medical evidence.

[7] It is indeed so that the requirement for leave to appeal is the existence of a reasonable prospect of success on appeal.

[8] An observation was made by Petse ADJP in S v Magadla 2010 (2) SACR 316 at 319 paragraph 10 in a similar application – that “virtually all the grounds set out in the application for leave to appeal now before us invite us to focus too intently on individual parts of the evidence adduced at the applicants trial, as appears from the appeal record, notwithstanding the fact that this court is enjoined by judicial authority to eschew that approach. Quite on the contrary, there is authority for the proposition that a trial court ought rather to adopt a holistic approach in evaluating the evidence presented before it, by having regard to the mosaic of proof as a whole”.

[9] In my view this observation applies in the present case as well – to the grounds upon which this application is based. It would appear that this court is required to focus on individual parts of the evidence adduced during the trial.

[10] In my judgment after the trial, I concluded that the effect of all the evidence including the items of circumstantial evidence, considered cumulatively, point to only one reasonable inference – namely that accused raped the complainant on the 14, 15 and 20 September 2009. This, after quoting from S v Reddy 1996 (2) SACR 1 (A) where at page 8 c-g the principles enunciated by Petse ADJP as to approach that should be followed in dealing with evidence, were earlier on stated. Although Zulman AJA was dealing specifically with circumstantial evidence, in my view the same principle applies to the consideration of evidence in general.

[11] In Reddy’s case supra Zulman AJA had this to say:

“In assessing circumstantial evidence one needs to be careful not to approach such evidence upon a piece meal basis and to subject each individual piece of such evidence to a consideration of whether it excluded the reasonable possibility that the explanation given by the accused is true. The evidence needs to be considered in its totality.”

Based on what I have stated above, and reasons given at the trial, I am not persuaded that there is a reasonable prospect of success on appeal.

In the result the following order is made:

The application for leave to appeal is dismissed.

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N G BESHE

JUDGE OF THE HIGH COURT

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