Fortuin v S (A500/2006) [2008] ZAWCHC 217 (6 June 2008)

Fortuin v S (A500/2006) [2008] ZAWCHC 217 (6 June 2008)

The court found that the applicant failed to demonstrate reasonable prospects of success on appeal to the Supreme Court of Appeal, either on questions of law or fact. The grounds advanced, specifically regarding the recall of the applicant as a witness and the medical evidence, were fully considered in the previous judgment and did not warrant reconsideration. The court was not persuaded by the submissions made and concluded that the application for leave to appeal should be dismissed.

Citation
[2008] ZAWCHC 217
Parties
Applicant: Burton Fortuin; Respondent: The State
Court
Western Cape High Court, Cape Town
Jurisdiction
South Africa
Judgment Date
6 June 2008
Case Number
A500/2006
Procedural Posture
Leave to Appeal / Application for Leave to Appeal to the Supreme Court of Appeal
Outcome
Application for leave to appeal to the Supreme Court of Appeal dismissed.
Judges
Moosa, Mlonzi
Legal Topics
Rape Conviction, Leave to Appeal, Prospects of Success, Recall of Witness, Medical Evidence
Criminal Law Rape Conviction Leave to Appeal Prospects of Success Recall of Witness Medical Evidence

Case Brief

Summary, issues, holding and outcome

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Parties

Burton Fortuin

Applicant

The State

Respondent

Procedural Posture

Leave to Appeal / Application for Leave to Appeal to the Supreme Court of Appeal

Legal Issues

  1. 1 Whether the applicant has reasonable prospects of success on appeal against conviction for rape.
  2. 2 Whether the magistrate erred in dismissing the application for recall of the applicant as a witness.
  3. 3 Whether the injuries testified to by the complainant could have been faked or were not observed by the medical expert.

Ratio Decidendi

The court found that the applicant failed to demonstrate reasonable prospects of success on appeal to the Supreme Court of Appeal, either on questions of law or fact. The grounds advanced, specifically regarding the recall of the applicant as a witness and the medical evidence, were fully considered in the previous judgment and did not warrant reconsideration. The court was not persuaded by the submissions made and concluded that the application for leave to appeal should be dismissed.

Court Disposition

Application for leave to appeal to the Supreme Court of Appeal dismissed.

Orders

  • The application for leave to appeal to the Supreme Court of Appeal is dismissed.