THE SUPREME COURT OF APPEAL OF SOUTH AFRICA
JUDGMENT

Not Reportable
Case no: 20075/14

In the matter between:

COLIN ALLAN GREENWOOD

APPELLANT

and

THE STATE

RESPONDENT

Neutral citation: Greenwood v S (20075/14) [2015] ZASCA 56 (30 March
2015)

Coram:
Shongwe and Mbha JJA and Gorven AJA

Heard:
16 March 2015

Delivered: 30 March 2015

Summary: Criminal Procedure – appeal against refusal to grant leave to
appeal on petition – question to be adjudicated is whether the appellant has
reasonable prospects of success on appeal and whether there are any other
reasons why an appeal should be heard.

ORDER
________________________________________________________________

On appeal from: The Eastern Cape High Court, East London (Dambuza and
Tshiki JJ concurring, sitting as court of appeal):
The appeal is dismissed.

JUDGMENT
________________________________________________________________

Shongwe JA (Mbha JA and Gorven AJA concurring)
[1] On 26 April 2006, the appellant was convicted on two counts of indecent
assault in terms of s 94 of the Criminal Procedure Act 51 of 1977 (‘the Act’),
two counts of rape in contravention of s 3, read with ss 56(1), 57(1), 58, 59 and
60 of the Criminal Law (Sexual Offences and Related Matters) Amendment Act
32 of 2007 (‘the Sexual Offences Act’) and three counts of sexual assault in
contravention of s 5(1) read with ss 1, 56(1), 57(1), 58, 59 and 60 of the Sexual
Offences Act, by the regional magistrate’s court (East London). He was
sentenced to 10 years’ imprisonment (all counts taken together for purposes of
sentence) of which 4 years’ imprisonment was suspended for 5 years on certain
conditions.

[2] His application for leave to appeal against conviction was refused,
however leave to appeal against sentence was granted. His petition to the Judge
President (Grahamstown High Court) against refusal of leave against conviction
was unsuccessful, however leave to appeal against the dismissal of the petition
was granted to this court (Dambuza J and Tshiki J concurring).

[3] The gravamen of what is before us is whether or not leave to appeal
should have been granted by the high court (See S v Khoasasa 2003 (1) SACR
123 (SCA) para 14 and 19-22; S v Smith 2012 (1) SACR 567 (SCA) para 3; S v
Kruger 2014 (1) SACR 647 (SCA). Therefore, the test to be applied is whether
there is a reasonable prospect of success in the intended appeal and not the
appeal itself – Matshona v S [2008] 4 All SA 68 (SCA) para 4. It was common
cause during the hearing that the onus rested on the appellant to satisfy this
court that there was a reasonable prospect of success on appeal – put differently
whether there was a probability of the appellant succeeding on appeal.

[4] Plasket AJA in S v Smith (supra) succinctly observed that:
‘[7] What the test of reasonable prospects of success postulates is a dispassionate decision,
based on the facts and the law, that a court of appeal could reasonably arrive at a conclusion
different to that of the trial court. In order to succeed, therefore, the appellant must convince
this court on proper grounds that he has prospects of success on appeal and that those
prospects are not remote, but have a realistic chance of succeeding. More is required to be
established than that there is a mere possibility of success, that the case is arguable on appeal
or that the case cannot be categorised as hopeless. There must, in other words, be a sound,
rational basis for the conclusion that there are prospects of success on appeal.’

[5] Counsel for the appellant contended that there are reasonable prospects of
success on appeal on the grounds that the magistrate misdirected himself in the
following respects. That because the complainants were minors, the trial court
should have applied three cautionary rules, those relating to a single witness,
young children and what he referred to as a residual cautionary rule. He pointed
out certain contradictions between the evidence of the complainants and also
contradictions based on what they said in their statements to the police. That the
magistrate erred in not finding that the appellant was a good witness despite his

giving evidence which was clear and not full of contradictions. That the
magistrate erred in accepting the evidence of Miss Karen Andrews, the clinical
psychologist who dealt with the behaviour of the complainants after the alleged
sexual assault and rape. That the magistrate erred in accepting the evidence of
Doctor Bomkazi Majeke alternatively he failed to place enough weight on the
fact that she (the Doctor) was inexperienced at the time she examined the two
complainants. That the magistrate erred by finding that there was no conspiracy
or collusion between the two complainants.

[6] Mr Price for the appellant referred to a whole host of criticisms, almost
criticising each and every finding of the trial court. I shall not deal with all the
contentions raised by him, it suffices to mention the few above.

[7] It was contended on behalf of the respondent that, it was naturally
expected that there would be contradictions between the two young
complainants. However, the trial court examined the evidence tendered by both
the State and the defence holistically and not on a piece meal basis. Counsel for
the respondent argued that, notwithstanding the concession of the existence of
contradictions, same did not destroy the evidence of the complainants as
supported by the medical evidence. Counsel further argued that there was no
collusion between the two complainants as they independently and separately
recollected what had happened and reported to their respective parents.

[8] I agree that the contradictions were expected, due to the passage of time
and the fact that the complainants were young children who could not remember

dates and the sequence of events. Holmes JA in S v Artman & another 1968 (3)
SA 339 (A) at 341 remarked that:
‘I would add that, while there is always need for caution in such cases, … and courts must
guard against their reasoning tending to become stifled by formalism. In other words, the
exercise of caution must not be allowed to displace the exercise of common sense.’
He further referred to similar remarks of Macdonald AJP in the Rhodesian
Appellate Division case of R v J 1966 (1) SA 88 (SR) at 90 – see also S v
Snyman 1968 (2) SA 582 (AD) at 585.

[9] The trial court found that ‘[w]hat is important is that on the same Sunday
in January 2009 the two boys at different and separate places in East London,
reported to their respective fathers acts of indecent assault committed by the
accused. As I have said, the versions coincided. This aspect, which is not
disputed, clearly serves as corroboration for their respective claims. There was
no possibility of any collusion between them. There is no bad blood’. The trial
court went on to say that ‘[t]aking into account that these incidents happened
over a lengthy period of time and repeatedly, such a confusion regarding the
positions in which it happened, is possible’.

[10] Having heard both counsel, I am not satisfied that the alleged
misdirections are sufficient to create a probability of the appellant succeeding
on appeal, hence I conclude that the appellant failed to show that there is a
reasonable prospect of success on appeal. Viewed holistically there are no other
reasons why an appeal should be heard. In the result:

[11] The appeal is dismissed.

_______________________

J B Z SHONGWE

JUDGE OF APPEAL

Appearances

For the Appellant:
T N Price SC

Instructed by:

Changfoot-Van Breda Attorneys, East London;

Symington & De Kok Attorneys, Bloemfontein.

For the Respondent:
J P J Engelbrecht

Instructed by:
The Director of Public Prosecutions, Grahamstown;
The Director of Public Prosecutions, Bloemfontein.