After five rape convicts successfully applied for leave to appeal, the high court in Northern Cape Division, Kimberley, Acting Judge Magafe Frans Ramaepadi, said he had to apply “a dispassionate’’ enquiry in considering the applications.
The five convicts – Waybriel Gertse, Graham Gertse, Vernit Priega, Alfonsus Visagie, and Andre Magerman – are currently serving their sentences after they were each found guilty of a count of rape.
Waybriel, Graham, and Magerman were sentenced to life imprisonment; Priega was sentenced to 25 years imprisonment; and Visagie was sentenced to 18 years imprisonment.
Waybriel, Graham, Priega and Magerman were granted leave to appeal against both conviction and sentence.
Visagie was granted leave to appeal on conviction only. Their applications are opposed by the State.
In considering the appeal, Acting Judge Ramaepadi said it is whether the appeal would have a reasonable prospect of success or whether there are compelling reasons why the appeal should be heard such as the interests of justice.
Before granting the leave to appeal at the same court, Acting Judge Ramaepadi, cited from Supreme Court of Appeal case law.
“This Court in Caratco, concerning the provisions of s 17(1)(a)(ii) of the Supreme Court (SC) Act pointed out that if the court is unpersuaded that there are prospects of success, it must still enquire into whether there is a compelling reason to entertain the appeal. Compelling reasons would, of course, include an important question of law or a discrete issue of public importance that will have an effect on future disputes. However, this Court correctly added that ‘but here too the merits remain vitally important and are often decisive’.
“If a reasonable prospect of success is established, leave to appeal should be granted. Similarly, if there are some other compelling reasons why the appeal should be heard, leave to appeal should be granted. The test of reasonable prospects of success postulates 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.”
The Acting Judge said: “In my view, all the applicants have a reasonable prospect of success on appeal. It is also in the interests of justice that leave be granted. The facts in this case require delicate balance.”
