form a filing sheet for eastern cape high court by ROAoRY4

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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.
_____________

N G BESHE
JUDGE OF THE HIGH COURT

								
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