THE SUPREME COURT OF APPEAL OF SOUTH AFRICA

JUDGMENT

Case no: 891/2012
Not Reportable
In the matter between:

MORNÈ BARNARD

Appellant

and

THE STATE

Respondent

Neutral citation: Barnard v The State (891/2012) [2013] ZASCA 75 (29 May
2013)

Coram:
MPATI P, THERON and PILLAY JJA and WILLIS and
ERASMUS  AJJA

Heard:

02 May 2013

Delivered
29 May 2013

Summary:
Criminal Procedure – Leave to appeal – Where an accused obtains
leave to appeal against the refusal in a high court of a petition seeking
leave to appeal against a conviction and sentence in the regional court,
the issue is whether leave to appeal should have been granted by the
high court and not the appeal itself – the test is whether there is a
reasonable prospect of success on appeal.

________________________________________________________________
ORDER
________________________________________________________________
On appeal from: Free State High Court, Bloemfontein (A Kruger and KJ
Moloi JJ sitting as court of appeal):
The appeal is dismissed.
________________________________________________________________
JUDGMENT
________________________________________________________________
THERON JA (MPATI P, PILLAY JA and WILLIS and ERASMUS AJJA
concurring):
[1] The appellant stood trial on three charges, namely rape, common assault
and unlawfully pointing a firearm in the regional court, Welkom. On 23 March
2010, he was convicted of rape and sentenced to 15 years’ imprisonment.

[2] It is necessary to consider the nature and ambit of this appeal. This court,
in S v Khoasasa 2003 (1) SACR 123 (SCA) held that the refusal of leave to
appeal to a high court by judges of that court, constitutes a final order of a
provincial division against which an appellant, either with the leave of the high
court or this court, could appeal.

[3] Where a person obtains leave to appeal to this court against the refusal in
a high court of a petition seeking leave to appeal against a conviction or
sentence in the regional court, as is the case here, the issue before the court is
whether leave to appeal should have been granted by the high court and not the

merits of the appeal.1 This is the position as this court does not have authority to
entertain an appeal directly from the regional court.2

[4] It is trite that the test in regard whether leave to appeal should have been
granted by the high court is whether there are reasonable prospects of success
on appeal – whether a court of appeal could reach a different conclusion to that
of the trial court.

[5] In order to determine whether the appellant has prospects of success on
appeal, it is necessary to briefly examine the merits. It is neither necessary nor
desirable to deal with the merits in great detail.3 The facts giving rise to the
prosecution and conviction of the appellant are largely common cause. During
the early hours of 28 June 2008, the appellant was driving his motor vehicle in
the town of Virginia, in the Free State, when he picked up the complainant, who
had signalled that she was looking for a lift. They travelled to the appellant’s
home where they had sexual intercourse. The question before the trial court was
whether the intercourse was consensual or not. The appellant’s version was that
the intercourse was consensual and he believed that the complainant was a
prostitute.

[6] On appeal, it was contended, on behalf of the appellant, that the high
court ought to have found that there is a reasonable possibility that another court
might find that the trial court erred in two respects. First, in rejecting the
appellant’s version as not being reasonably possibly true. Secondly, in not
approaching the evidence of the complainant with the necessary caution and
merely paying lip service to the cautionary rule. The reasons stipulated by the
magistrate for rejecting the version of the appellant, were (1) the evidence did

1 Matshona v S [2008] 4 All SA 68 (SCA) para 5.
2 S v N 1991 (2) SACR 10 (A) at 16a-e; S v Khoasasa 2003 (1) SACR 123 (SCA) para 12; Matshona v S [2008]
4 All SA 68 (SCA) para 3.
3 De Sousa v S [2012] JOL 29000 (SCA) para 9.

not support the alleged belief held by the appellant that the complainant was a
prostitute; (2) neither the nature of the services to be rendered nor the price to
be paid was discussed; and (3) crucial aspects of the appellant’s version were
not put to the complainant, such as that the complainant had placed her hand on
his thigh shortly after entering the motor vehicle, that she had enjoyed the
sexual intercourse and that the sex had been rough (‘rowwe seks’).  In accepting
the evidence of the complainant, the trial court found that she was an impressive
witness, that her evidence was corroborated in material respects and in
particular by the medical evidence. I am not persuaded that the magistrate was
wrong in the assessment of the evidence and accordingly am not satisfied that
there exists a reasonable possibility that an appeal court can reach a different
conclusion in respect of the conviction.

[7] The following factors have a bearing on whether there are reasonable
prospects of success in respect of sentence. The appellant was 34 at time of his
trial, with a previous conviction for assault. He was employed by the South
African Police Service as a police officer. He had suffered financially since the
charges were brought against him as he had been suspended for a period. He
would probably, and in consequence of his conviction, be dismissed from his
employment. There are a number of aggravating factors in this matter namely
(a) although he was off-duty at the time, the appellant was a police officer who
was supposed to protect and serve the community; (b) the complainant trusted
him and he abused this trust; (c) a firearm was used to threaten the complainant;
(d) the complainant sustained physical injuries as well as psychological trauma
in consequence of the rape; and (e) rape is a serious and extremely prevalent
offence. Having regard to the nature and circumstances of the offence, the
personal circumstances of the appellant as well as the interests of the
community, I am not persuaded that another court might find that the sentence
of 15 years’ imprisonment is unduly excessive or shockingly inappropriate.

[8] In the result, the appeal is dismissed.

______________
L V THERON
JUDGE OF APPEAL

APPEARANCES
For Appellant:

J Nel SC
Instructed by:
Pie-Ér Huggett Incorporated,
Bloemfontein

For Respondent:

S Goirgi

Instructed by:
The Director of Public Prosecution,

Bloemfontein

THE SUPREME COURT OF APPEAL
OF SOUTH AFRICA

MEDIA SUMMARY – JUDGMENT DELIVERED IN THE
SUPREME COURT OF APPEAL
MEDIA SUMMARY – JUDGMENT DELIVERED IN COURT OF
APPEAL
29 May 2013

STATUS: Immediate

MORNÈ BARNARD and THE STATE

Please note that the media summary is intended for the benefit of the media and does not
form part of the judgment of the Supreme Court of Appeal

Today the Supreme Court of Appeal (SCA) dismissed an appeal against the refusal of a
petition in the high court for leave to appeal to that court against a conviction and sentence
imposed in the regional court.

The appellant stood trial on three charges, namely rape, common assault and unlawfully
pointing a firearm in the regional court, Welkom. On 23 March 2010, he was convicted of
rape and sentenced to 15 years’ imprisonment.  On that same day he applied, in terms of s
309B of the Criminal Procedure Act 51 of 1977 (the Act), for leave to appeal against his
conviction and sentence. The trial court refused the application. Thereafter, and in terms of s
309C of the Act, he applied to the Judge President of the Free State Provincial Division, for
such leave.  The petition to the high court was refused by two judges (Kruger and Moloi JJ).

The question before the trial court was whether the intercourse was consensual or not. The
appellant’s version was that the intercourse was consensual and he believed that the
complainant was a prostitute.

The SCA held that it was not persuaded that the magistrate was wrong in the assessment of
the evidence. It was also not satisfied that there exists a reasonable possibility that an
appeal court can reach a different conclusion in respect of the conviction.

In respect of sentence, the SCA found that, having regard to the nature and circumstances
of the offence, the personal circumstances of the appellant as well as the interests of the
community, it was not persuaded that another court might find that the sentence of 15 years’
imprisonment is unduly excessive or shockingly inappropriate.

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