THE SUPREME COURT OF APPEAL OF SOUTH AFRICA

JUDGMENT

Case No:   580/10

In the matter between:

JAMES PATRICK HIBBERT                                                      Appellant

and

THE STATE                                                                                Respondent

Neutral citation: Hibbert v S (580/10) [2011] ZASCA 18 (15 March 2011)

Coram:
STREICHER, BOSIELO and THERON JJA

Heard:
15 March 2011
Delivered:
15 March 2011

Summary:
Application for leave to appeal against a High Court
order refusing a petition for leave to appeal.

_____________________________________________________________________

ORDER

On appeal from: Western Cape High Court (Cape Town) (Erasmus and
Allie JJ sitting as court of first instance.):

The order of the Western Cape High Court (Erasmus and Allie JJ),
dated 18 August 2009, is set aside.
The appellant is granted leave to appeal against his convictions and
sentence.
___________________________________________________________

JUDGMENT

THERON JA (STREICHER and BOSIELO JJA concurring)

[1] The appellant stood trial in the Regional Court, Mossel Bay, on
charges of sexual assault and rape, read with the provisions of Act 105 of
1997. The incident giving rise to these charges being preferred against the
appellant was alleged to have occurred during the period December 2004
to January 2005. The appellant was charged on 30 May 2008. Despite his
plea of not guilty in respect of both charges, the appellant was, at the end
of the trial found guilty and sentenced to an effective term of
imprisonment of eight years.

[2] On 18 June 2009 and immediately after judgment on sentence was
delivered, the appellant applied for leave to appeal against the
convictions. This application was refused. The appellant subsequently
petitioned the Western Cape Judge President for leave to appeal against

the convictions and sentence in terms of s 309C of the Criminal
Procedure Act 51 of 1977. On 18 August 2009, the Western Cape High
Court (Erasmus and Allie JJ) refused his petition.

[3] The appellant applied to the high court for leave to appeal against
its decision refusing leave to appeal against his convictions and sentence.
The high court apparently had second thoughts about its decision to
refuse leave and granted the appellant leave to appeal to this court against
the high court’s refusal of his petition.

[4] At the hearing of this appeal, counsel for the state conceded that
there was a reasonable possibility that another court could reach a
different conclusion to that of the trial court. No more need be said.

[5] In the circumstances the following order is made:
5.1
The order of the Western Cape High Court (Erasmus and Allie JJ),
dated 18 August 2009, is set aside.
5.2
The appellant is granted leave to appeal against his convictions and
sentence.

____________________

L Theron

Judge of Appeal

APPEARANCES

APPELLANT:

DL van der Merwe
Instructed by Heyns & Partners Inc, Cape
Town;

Naudes, Bloemfontein

RESPONDENT:
(Ms) EA Kortje
Instructed
by
the
Director
of
Public
Prosecutions, Cape Town;
The
Director
of
Public
Prosecutions,
Bloemfontein