Hibbert v The State

The appellant was tried in the Regional Court, Mossel Bay, on charges of sexual assault and rape, read with the Criminal Law (Sexual Offences and Related Matters) Amendment Act 105 of 1997. The alleged offences occurred during December 2004 to January 2005. He was charged on 30 May 2008, pleaded not guilty, but was convicted on both counts and sentenced to an effective term of eight years’ imprisonment. His application for leave to appeal against conviction was refused by the trial court. A subsequent petition for leave to appeal in terms of s 309C of the Criminal Procedure Act 51 of 1977 was refused by the Western Cape High Court (Erasmus and Allie JJ). The High Court later granted leave to appeal to the Supreme Court of Appeal against its refusal of the petition.

The appeal was upheld. The order of the Western Cape High Court dated 18 August 2009 was set aside, and the appellant was granted leave to appeal against his convictions and sentence.

The case confirms the application of the test for leave to appeal in criminal matters, namely whether there is a reasonable prospect that another court may come to a different conclusion. It illustrates the supervisory role of the Supreme Court of Appeal over refusals of leave to appeal by High Courts and underscores that such refusals should not stand where reasonable prospects exist.