South Africa: Western Cape High Court, Cape Town

IN THE HIGH COURT OF SOUTH AFRICA
(CAPE OF GOOD HOPE PROVINCIAL DIVISION)

CASE NO: SS 148/2006

DATE: 06 MAY 2009

In the matter between:

GABIBA THEMBA …................................................................................Applicant

and

THE STATE ….....................................................................................Respondent

JUDGMENT

(Application For Leave To Appeal)

CLEAVER R

The applicant, who was accused number 1 in the trial, applies for leave to appeal against her conviction on counts 1 and 2 and also the sentence imposed in respect of those convictions.

The submissions made on behalf of the applicant are basically that the Court failed to evaluate the evidence of the State witnesses critically and also failed to take into account the lapse of time since the occurrence of the events, which would explain in some measure the unsatisfactory nature of the applicant's evidence.

The case for the State in respect of count 1 rests solely on circumstantial evidence. There was no evidence led to implicate the applicant directly and the issue to be considered is simply whether there is a reasonable prospect that another Court may come to a different conclusion from that reached by the Court convicting the applicant, based on the proved facts.

The applicant was convicted because her version as to what happened that night and the various explanations given by her as to what happened could not reasonably possibly be true. In effect, her evidence was rejected and the Court concluded that because of her peculiar situation, being the wife of the deceased and her presence in the house very shortly before the body of the accused was discovered, she must have been involved in the murder and the attempt to cover it up. That was the basis on which she convicted.

In my view there is a reasonable possibility that another Court may come to a different conclusion, and in the circumstances leave to appeal against her conviction on count 2 will be granted. In the circumstances, once she has been granted leave to appeal on the murder charge, I will grant her leave to appeal on count 1 as well. Leave to appeal in respect of the sentence will not be granted.

In the circumstances, LEAVE IS GRANTED to the appellant to appeal to the Full Bench of this Division against her conviction on COUNTS 1 AND 2. LEAVE TO APPEAL AGAINST THE SENTENCE IS REFUSED.

CLEAVER, J