THE SUPREME COURT OF APPEAL OF SOUTH AFRICA

JUDGMENT

Not reportable

Case no: 1396/2016

In the matter between:

KATERYNA KARPOVSKA
APPELLANT

and

THE STATE
RESPONDENT

Neutral citation: Karpovska v The State (1396/2016) [2017] ZASCA 101(24
August 2017)

Bench:
Bosielo, Majiedt, Petse and Saldulker JJA and Lamont
AJA

Heard:
16 August 2017

Delivered:
24 August 2017

Summary: Appeal – application for leave to appeal against convictions
dismissed by regional magistrate - petition refused by the court a quo- special
leave to appeal against the dismissal of petition granted to Supreme Court of
Appeal – whether leave to appeal ought to have been granted by court a quo -
whether there are reasonable prospects of success.

______________________________________________________________

ORDER
______________________________________________________________

On appeal from: Western Cape High Court, Cape Town (Saldanha and
Baartman JJ):

The appeal against the refusal of the petition in respect of counts 1 and 4 is
dismissed.
______________________________________________________________

JUDGMENT
______________________________________________________________

Saldulker JA (Bosielo, Majiedt, Petse JJA and Lamont AJA concurring):

[1] The appellant was indicted in the Bellville Specialised Commercial Court
on four counts of fraud and one count of contravening the Prevention of
Organised Crime Act 121 of 1998 and one count of contravening the Financial
Advisory and Intermediary Services Act 37 of 2002.

[2] She was convicted on three counts of fraud and acquitted on all the
other charges. On count 1 she was sentenced to eight years' imprisonment
wholly suspended for a period of five years on condition that she was not
convicted of an offence involving fraud or theft committed during the period of
suspension, and on the further condition that she repays the complainant the
sum of R1, 755 million on or before 28 February 2014. On counts 3 and 4 she
was sentenced to three years correctional supervision in terms of s 276 (1)(h)
of the Criminal Procedure Act 51 of 1977.

[3] An application for leave to appeal against the convictions was dismissed
by the regional magistrate. The appellant petitioned the Western Cape High
Court, Cape Town (the high court) and leave to appeal was granted in respect

of count 3 only. An application for special leave to appeal against the refusal of
the petition in respect of counts 1 and 4 was granted by this court.

[4] The crisp issue to be determined in this matter is not whether the appeal
on the merits should succeed or not, but whether leave to appeal should have
been granted by the court a quo. This requires us to determine whether the
court a quo should have granted the petition or not.

[5] Leave to appeal has already been granted against the appellant’s
conviction on count 3 by the high court. The question is thus whether the
appellant has established that there are reasonable prospects of success in an
envisaged appeal against the convictions on counts 1 and 4. The most recent
decision concerning this issue is S v Radebe.1

[6] We do not find it necessary to deal with the merits of this matter in any
great detail, save to consider whether there are reasonable prospects of
success or not. In respect of count 1: the trial court in a very carefully reasoned
judgment set out all the relevant facts and rejected the evidence of the
appellant and accepted the evidence of the complainant. The complainant’s
evidence was correctly accepted as credible by the magistrate and was
corroborated by voluminous documents which were produced in evidence. The
entire weight of the evidence was considered fully by the magistrate who, in
such consideration, reached the conclusion that the evidence of the
complainant was to be accepted and that the evidence of the appellant fell to
be rejected as false beyond reasonable doubt.

[7] The trial court made credibility findings with which this court will not
readily interfere. The magistrate's assessment of the evidence accords with the
probabilities to be attached to such evidence, which evidence established the
guilt of the appellant beyond a reasonable doubt. Thus there is no reasonable
prospects of success on count 1.

1 S v Radebe [2016] ZASCA 172; 2017 (1) SACR 619 (SCA).

[8] On count 4: the facts were largely common cause. The trial court
carefully considered all the evidence. It accepted the complainant’s version
and rejected the defence raised by the appellant on the basis that no duress
had been established. There is no reason to interfere with this finding. Thus
there is no reasonable prospects of success in respect of count 4.

[9] In the result the following order is made: The appeal against the refusal
of the petition in respect of counts 1 and 4 is dismissed.

H K SALDULKER
JUDGE OF APPEAL

Appearances:

For the Appellant:

A A Mia

Instructed by:

William Booth Attorneys, Cape Town

Hanno Bekker Attorneys, Bloemfontein

For the Respondent:
F J Vogel

Instructed by:

The Director of Public Prosecutions, Cape Town

The Director of Public Prosecutions, Bloemfontein