S v Magadla

• Jurisdiction: South Africa
• Judgment Date: 17 December 2009
• Citation: 2010 (2) SACR 316 (ECM)

S v Magadla
2010 (2) SACR 316 (ECM)

2010 (2) SACR p316

Citation	2010 (2) SACR 316 (ECM)
Case No	A41/2008
Court	Eastern Cape High Court, Mthatha
Judge	Petse ADJP and Griffiths AJ
Heard	December 9, 2009
Judgment	December 17, 2009
Counsel	MB Tshiki (attorney) for the applicant.; MR Lepheane (DPP, Mthatha) for the State.

Flynote : Sleutelwoorde

Appeal — Leave to appeal — Application for — Requirements — Existence of reasonable prospect of success — Mere possibility of another court coming to different conclusion not sufficient — Not enough that case arguable — Wrong to invite court to focus too intently on individual parts of evidence — Correct method to have regard to mosaic of proof as whole — Even if certain aspects of State's case not adequately probed, these not detracting from fact that totality of evidence of sufficient weight to sustain conviction.

Appeal — Leave to appeal — Application for — Trial court not explicitly rejecting alibi defence — Clear from thrust and context of judgment that this defence indeed rejected — In any event, at risk of stating obvious, no judgment ever all-embracing.

Headnote : Kopnota

The applicant was convicted of rape and sentenced to ten years' imprisonment. His appeal to the High Court against conviction having failed, he filed a E notice of intention to apply for leave to appeal to the Supreme Court of Appeal. The applicant based his application on the grounds that the court had not rejected his alibi defence as false; that it had not paid sufficient regard to the reliability of the State's evidence; that it had erred in finding that the complainant had had adequate opportunity to identify the perpetrator; and that it had erred in accepting the credibility of the State's F witnesses.

Held, that the chief requirement for the granting of leave to appeal was the existence of a reasonable prospect of success on appeal. The mere possibility that another court might come to a different conclusion was not sufficient; nor was it enough that the case was arguable, nor that it would offer solace to the applicant to know that the final decision would be given G by a higher court. (Paragraphs [5]–[8] at 318 i–319 f.)

Held, further, that virtually all the grounds set out in the application for leave to appeal invited the court to focus too intently on individual parts of the evidence, whereas the correct method was to adopt a holistic approach, having regard to the mosaic of proof as a whole. It might well be that there were certain aspects of the State's case that had not been adequately H probed, but these did not individually or cumulatively detract from the fact that the evidence, when considered in its totality, was of sufficient weight to sustain a conviction. (Paragraphs [10]–[13] at 319 h–320 h.)

Held, further, concerning the identification of the applicant, that the court had been alive to the dangers of unequivocal acceptance of the complainant's evidence, especially as she was a single witness. The risk of mistaken I identification had been substantially reduced, if not eliminated, by the various factors: the complainant had travelled for some time in the applicant's vehicle; the room in which she had been raped was lit by electric light; she had witnessed him putting on a condom on two occasions, before each episode of sexual intercourse; the following morning she had again travelled in his car to a point where he had dropped her off; and she had J reacted in a specific way when, the following day, and in the company of a

2010 (2) SACR p317

friend, she had seen the applicant's car. She had, accordingly, had ample A opportunity to see who she was with. (Paragraphs [16]–[19] at 321 i–323 a.)

Held, further, regarding the applicant's alibi defence, that some play had been made of the fact that the court had not explicitly held that the alibi evidence was false. However, it was clear from the thrust and context of the judgment that this defence had indeed been rejected. In any event, at the risk of stating the obvious, no judgment could ever be all-embracing. (Paragraph B [20] at 323 c–e.) Application dismissed.

Annotations:

Cases cited

Reported cases

Afrikaanse Pers Beperk v Olivier 1949 (2) SA 890 (O): referred to

Botes and Another v Nedbank Ltd 1983 (3) SA 27 (A): referred to C

Capital Building Society v De Jager and Others; De Jager and Another v Capital Building Society 1964 (1) SA 247 (A): referred to

R v Baloi 1949 (1) SA 523 (A): referred to

R v Biya 1952 (4) SA 514 (A): referred to

R v Hlongwane 1959 (3) SA 337 (A): referred to

R v Masemang 1950 (2) SA 488 (A): referred to D

R v Muller 1957 (4) SA 642 (A): dictum at 645D - E applied

R v Ngubane and Others 1945 AD 185: referred to

R v Nxumalo 1939 AD 580: referred to

S v Ackerman en 'n Ander 1973 (1) SA 765 (A): referred to

S v Charzen and Another 2006 (2) SACR 143 (SCA) ([2006] 2 All SA 371): referred to E

S v Hadebe and Others 1998 (1) SACR 422 (SCA): referred to

S v Jochems 1991 (1) SACR 208 (A): referred to

S v Liebenberg 2005 (2) SACR 355 (SCA): referred to

S v M 2006 (1) SACR 135 (SCA): referred to

S v Majiame and Others 1999 (1) SACR 204 (O): referred to

S v Mthethwa 1972 (3) SA 766 (A): dictum at 768A - C applied F

S v Ntsele 1998 (2) SACR 178 (SCA) ([1998] 3 All SA 517): referred to

S v Phallo and Others 1999 (2) SACR 558 (SCA): referred to

S v Pretorius en 'n Ander 1991 (2) SACR 601 (A): referred to

S v Ratte 1998 (1) SACR 323 (T): referred to

S v Reddy and Others 1996 (2) SACR 1 (A): referred to

S v Shackell 2001 (2) SACR 185 (SCA) (2001 (4) SA 1; [2001] 4 All SA 279): dictum at 194 g - i applied G

S v Sikosana 1980 (4) SA 559 (A): referred to

S v Sithole and Others 1999 (1) SACR 585 (W): referred to

S v Swanepoel 1978 (2) SA 410 (A): referred to

S v Van der Meyden 1999 (1) SACR 447 (W) (1999 (2) SA 79): dictum at 449 i - 450 c applied H

S v Van Eck en 'n Ander 1996 (1) SACR 130 (A): referred to.

Case Information

Application for leave to appeal to the Supreme Court of Appeal. The facts appear from the judgment of Petse ADJP, in which Griffiths AJ concurred. I

MB Tshiki (attorney) for the applicant.

MR Lepheane (DPP, Mthatha) for the State.

Cur adv vult.

Postea (December 17). J

2010 (2) SACR p318

Judgment

Petse ADJP:

[1] Mr Mcebisi Magadla, to whom I shall, purely for the sake of convenience, hereinafter refer to as 'the applicant', was convicted on a charge of rape in the regional court, Willowvale, on 27 September 2007 and thereupon sentenced to ten years' imprisonment.

B [2] Disenchanted by his conviction, the applicant appealed to this court against his conviction only. His appeal served before Griffiths AJ and me on 26 March and 18 May 2009. Upon conclusion of argument we reserved our judgment and subsequently handed it down on 18 June 2009, in terms of which the appeal was dismissed.

C [3] On 25 June 2009 the applicant filed a notice of application in terms whereof he seeks leave of this court to appeal against the dismissal of his appeal to the Supreme Court of Appeal. Thereafter no action was taken to prosecute the application for leave to appeal until 11 November 2009 when I was approached by the registrar of this court, who brought the D application to my attention. I thereupon expressed my concern to the registrar about what I considered to be an extraordinary delay in bringing the existence of the application to my attention. The explanation proffered by the registrar was, in my view, singularly unsatisfactory. For present purposes, however, such explanation is not something that I E need to delve into, save to say that I shall return to the aspect relating to the delay in prosecuting the application later in this judgment.

[4] Turning now to the matter at hand in this application, I just want to mention by way of prelude that the grounds of the applicant's proposed appeal comprise some eight and a half typed pages. Purely for the sake F of brevity and in order not to unduly burden this judgment I will not repeat...