---

IN THE HIGH COURT OF SOUTH AFRICA

FREE STATE DIVISION, BLOEMFONTEIN

                                                                                    CASE NO. 27/2020

In the matter between

THE STATE

versus

RICARDO CORNELIUS GERHARDUS METTLER         ACCUSED

CORAM:                    S NAIDOO J

HEARD ON:             28 APRIL 2021

DELIVERED ON:     29 APRIL 2021

JUDGMENT – APPLICATION FOR LEAVE TO APPEAL

[1]        The court convicted the accused in December 2020 and sentenced him in March 2021 0n various charges, which have been detailed in the judgment relevant to this matter. This is an application for leave to appeal against the convictions and sentence. Adv C Meiring represented the applicant, and the state was represented by Adv M Strauss. Ms A Ferreira, who prosecuted this matter, prepared the Heads of Argument on behalf of the state.

[2]        The judgment was assailed on a number of grounds, which, in summary are that the court erred or misdirected itself by finding that:

2.1      the state proved the guilt of the accused beyond reasonable doubt;

2.2      the barcode of the Pierneef painting was a significant part of the matter and ignoring other relevant and material evidence;

2.3      the only reasonable inference to be drawn from the facts is that the applicant removed the barcode from the Pierneef painting and removed the painting from the storeroom or the cabinet room;

2.4      The court did not correctly apply the principles relating to circumstantial evidence.

[3]        With regard to the sentences imposed, the applicant submitted that

3.1      the court did not accord sufficient weight to the personal circumstances of the applicant;

3.2      the court over emphasized the other factors relevant to sentence and down-played the applicant’s personal circumstances.

3.3      the sentence imposed by the court is shockingly inappropriate and disproportionate to the offence, to the extent that it will be set aside by another court.

[4]        With the advent of the Superior Courts Act 10 of 2013 (the Act), section 17 thereof now regulates the test to be applied in an application for leave to appeal. The relevant provisions of section 17(1) provide as follows:

“(1) Leave to appeal may only be given where the judge or judges concerned are of the opinion that concerned are of the opinion that

(a)   (i)   the appeal would have a reasonable prospect of success; or

2. there is some other compelling reason why the appeal should be heard including conflicting judgments on the matter under consideration

   (my emphasis and underlining)

[5]        Previously, an applicant was merely required to show that there is a reasonable possibility that another court, differently constituted, would find differently to the court against whose judgment leave to appeal is sought. It is clear from section 17(I), set out above, that the situation is now somewhat different, and an applicant for leave to appeal is required to convince the court that there is a reasonable prospect of success and not merely a possibility of success. In the matter of The Mont Chevaux Trust v Tina Goosen + 18 2014 JDR LCC, Bertelsmann J held that:

“It is clear that the threshold for granting leave to appeal against a judgment of a high court has been raised in the new Act. The former test whether leave to appeal should be granted was a reasonable prospect that another court might come to a different conclusion…. The use of the word ‘would’ in the new statute indicates a measure of certainty that another court will differ from the court whose judgment is sought to be appealed against.”

[6]        The Mont Chevaux decision was cited with approval in a number of cases, one such matter being Matoto v Free State Gambling and Liquor Authority (4629/2015) [2017] ZAFSHC 80 (8 June 2017), a decision emanating from this Division, where my brother Daffue J echoed the remarks of Bertelsmann J at paragraph 5 and remarked that “There can be no doubt that the bar for granting leave to appeal has been raised…The use by the legislature of the word “only” emphasized supra, is a further indication of a more stringent test.”

The Full Court in Acting National Director of Public Prosecutions and Others v Democratic Alliance (19577/2009) [2016] ZAGPPHC 489 (24 June 2016) also cited Mont Cheveau with approval.

[7]        The judgment in this matter sets out extensively the evidence led by the state and an analysis of the circumstantial evidence, in conjunction with the undisputed facts and the applicable law, which pointed to the guilt of the applicant. It must also be borne in mind that the applicant set out an explanation of his plea of not guilty in his statement in terms of section 115 of the Criminal Procedure Act 51 of 1977 but did not testify in order to properly place his version before the court. He attempted to proffer a version, in contradiction to that of the state, via the probation officer in this matter.  The applicant continued to insist that the former Premier gifted him the painting, when this was not the evidence of the former Premier.

[8]        The applicant did not dispute that he removed the painting from the Office of the Premier, that he took the painting to Mr Hsu, initially as security for a loan he attempted to obtain from Hsu, and then subsequently authorized him to sell the painting. The actions of the applicant in respect of the various counts have been detailed in judgment, and it is not necessary to repeat them here. I should perhaps mention that the applicant asserts that the court merely looked at photographs to conclude that the barcode was forcibly removed from the back of the painting. This completely ignores the fact that the painting was physically examined by the court and all parties during the inspection in loco undertaken at the Office of the Premier. The court observed the back of the painting to confirm what was previously seen on the photographs of the back of the painting. In the presence of all parties present, counsel for the state photographed the back of the painting at the inspection and handed up those photographs as evidence, with the agreement of the applicant. Mr Meiring took issue with the fact that the court did not mention in its notes relating to the inspection in loco that the court physically examined the back of the painting to ascertain that the barcode was forcibly removed.

[9]        The extensive “analysis” of the judgment and the court’s reasoning in the arguments before court and in the applicant’s Heads of Argument do not demonstrate that there would be a reasonable prospect of success on appeal. It must be borne in mind that an appeal is directed at the order of the court and not the reasoning in the judgment. The applicant embarked on examining individual aspects of the evidence led and the manner in which the evidence was dealt with in the judgment.  During the arguments in court, Mr Meiring made much of whether there was a barcode affixed to the Pierneef when the applicant removed the painting from the Office of the Premier. The judgment details all the surrounding evidence, which led to the conclusion that the applicant was the only one with motive to remove the barcode. Whether he did so personally or was assisted by someone is immaterial. It was done with his knowledge, if he did not personally remove the barcode. If he were successful, he would have been the only one to benefit financially. Hsu would merely have been repaid any amount that he has disbursed in respect of his transaction with the applicant. The court’s reasoning and conclusion in respect of sentence are a matter of record, and the applicant has not put forward convincing arguments that another court would make a different finding in this respect.

[10]     In the circumstances the following order is made:

the application for leave to appeal against the convictions and sentence is dismissed

                                                                                               __________________

                                                                                                           S NAIDOO J

On behalf of the Applicant:             Adv C Meiring

Instructed by:                                    Peyper Attorneys

                                                            101 Olympus Drive

                                                            Helicon Heights

                                           Bloemfontein

                                                (Ref: Mr H Peyper)

On behalf of the Respondent:        Adv M Strauss

(State)

---