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[2016] ZAWCHC 81
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Arendse v Magistrate, Wynberg and Others (3866/2015) [2016] ZAWCHC 81; [2016] 3 All SA 707 (WCC); 2017 (1) SACR 403 (WCC) (24 June 2016)
THE
REPUBLIC OF SOUTH AFRICA
IN
THE HIGH COURT OF SOUTH AFRICA
(WESTERN
CAPE DIVISION, CAPE TOWN)
Case
No: 3866/2015
DATE:
24 JUNE 2016
REPORTABLE
In
the matter between:
HENOCH
ARENDSE
...............................................................................................................
Applicant
And
MRS
H ALMAN,
THE
MAGISTRATE
WYNBERG
..................................................................................
1
st
Respondent
THE
DIRECTOR OF PUBLIC PROSECUTIONS,
CAPE
TOWN
..................................................................................................................
2
nd
Respondent
THE
MINISTER OF JUSTICE &
CONSTITUTIONAL
DEVELOPMENT
.......................................................................
3
rd
Respondent
JUDGMENT
Before
the Hon. Mr Justice Bozalek
Hearing:
18 May 2016
Judgment
Delivered: 24 June 2016
BOZALEK
J
[1]
In this application the applicant seeks an
order that he is deemed to have served a sentence of imprisonment
imposed upon him by
the Magistrate of Wynberg, which sentence he has
in fact not served, alternatively, any other order that this Court
considers just
and equitable.
[2]
The first and third respondents, the
Wynberg Magistrate and the Minister of Justice and Constitutional
Development, abide the decision
of the Court but the second
respondent, the Director of Public Prosecutions, Cape Town, opposes
the relief sought.
[3]
In an amended notice of motion the
applicant bases his relief on the delay in putting the sentence into
operation and on the basis
that his constitutional rights to a fair
trial, to dignity, freedom and the security of his person and not to
be punished or treated
in a cruel and inhuman or degrading way, will
be unjustifiably infringed should the relief not be granted. The
sentence was initially
imposed upon him by the first respondent on 11
March 2003, and was confirmed by the Supreme Court of Appeal on 11
September 2006
BACKGROUND
[4]
Before dealing with the issues which this
application raises a brief background and history is necessary.
Unless otherwise indicated
these facts and dates are common cause
between the parties.
[5]
The applicant is a 51 year old correctional
officer in the employ of the Department of Correctional Services with
approximately
31 years of service to his name.
[6]
On 9 July 1998 he was arrested by members
of the South African Police Services when he was found in a vehicle
in possession of a
bag containing 2,109kg of cannabis packed into
approximately 40 separate plastic bags. At the time of his arrest the
applicant
had just left the Pollsmoor prison premises where he worked
and, on his own version, his intent was to return to the Pollsmoor
premises after picking up the bag in question.
[7]
The applicant, with two co-accused, was
tried in the District Magistrates Court at Wynberg and on 18 April
2000 he was convicted
of contravening sec 5(b) of the Drugs and Drug
Trafficking Act, 140 of 1992 i.e. dealing in cannabis. He was
eventually sentenced
to five (5) years imprisonment of which two (2)
years were suspended conditionally for four (4) years.
[8]
Between conviction and sentence, the
applicant spent 14 months in custody pending the outcome of a review
to determine whether he
should be sentenced by the district
magistrate or in the regional court. This is the only period he has
ever spent in custody in
relation to this matter.
[9]
On 3 June 2005 the applicant and his
co-accused appealed to the Western Cape High Court against both
convictions and sentences.
The applicant’s appeal was dismissed
and his conviction and sentence confirmed.
[10]
On 15 September 2005, after hearing an
application for leave to appeal against both conviction and sentence,
the applicant was granted
leave to appeal to the Supreme Court of
Appeal against sentence only, his bail being extended pending the
appeal.
[11]
On 11 September 2006, the Supreme Court of
Appeal dismissed the applicant’s appeal against his sentence
and confirmed the
conviction and sentence. Thereafter, and to date,
no further notice or any application for leave to appeal or to
approach the Constitutional
Court has been filed. The applicant has
yet to serve one day of his effective sentence of three (3) years’
imprisonment.
[12]
A Notice to Surrender was issued by the
appeals clerk at the Wynberg Magistrates Court and served on the
applicant on 21 January
2015 in which he was instructed to surrender
himself on 12 February 2015 to commence serving his sentence. The
applicant failed
to surrender himself on the appointed day and the
matter was placed before the first respondent, the magistrate who
initially convicted
and sentenced the applicant, in terms of the
provisions of sec 299 of the Criminal Procedure Act, 51 of 1977 (‘the
Act’)
with an application for a warrant for his arrest to be
authorised and issued. The applicant was initially represented in the
application
by the same firm of attorneys, William Booth Inc, who
represented him in his trial and appeals. The first respondent was
informed
that the applicant was unable to surrender himself due to
his ill-health and a stay of any warrant was sought.
[13]
For medical reasons relating to the
applicant, the application was postponed to 26 February 2015 on which
day it transpired that
the applicant’s legal representative’s
mandate had been ended and a new legal representative was appointed.
Once again
the application for the issuing of a warrant of arrest was
postponed, until 6 March 2015, this time to afford the applicant an
opportunity to supply a comprehensive medical report. A further
postponement followed until the proceedings eventually concluded
on
23 April 2015. By this stage the applicant had abandoned his medical
ground for opposing the issuing of a warrant, rather basing
his
opposition on the ground that he intended approaching this Court for
the relief that he presently seeks, namely, an order that
he must be
deemed to have served his sentence of imprisonment.
[14]
The first respondent heard the evidence of
three witnesses in the aforesaid application as well as argument from
the prosecutor
and the applicant’s legal representative. She
ruled that she was satisfied that good cause had been shown for the
suspension
of the warrant which was duly suspended until 27 May 2015
pending the outcome of this application.
[15]
In this Court the matter was first called
on 18 August 2015 but it was postponed on five occasions before
finally being set down
for hearing before myself on 4 May 2016 i.e. a
year after the first respondent suspended the warrant for little more
than a month.
When it was first called before me, the applicant’s
counsel applied for a postponement of several months in order to
effect
certain amendments to his notice of motion. These were, in my
view, merely formal amendments which could have been dealt with on
the turn. Be that as it may the applicant persisted in his
application for a postponement and one was granted for a period of
two weeks.
THE
APPLICANT’S CASE
[16]
The applicant’s case is that after he
was informed of the outcome of his appeal to the Supreme Court of
Appeal by his attorney,
Mr William Booth (‘Booth’), the
latter insisted that the matter be taken to the Constitutional Court.
To this end the
applicant paid a deposit to Booth’s firm of
R25 000.00. He remained in regular contact with Booth and was
told by him
that these matters take time and that he need not worry.
Whenever he was asked for funds he paid his account for services
rendered.
He continued to abide by the conditions of the bail
initially granted by the Wynberg Magistrates Court and which required
him to
report twice weekly to the South African Police in Worcester.
When he received the Notice to Surrender in order to serve his
sentence
in January 2015, nearly eight and a half years after his
appeal to the Supreme Court of Appeal was dismissed, he contacted
Booth
who told him for the first time that he had never ‘
listed’
his case with the Constitutional Court. Booth told him further that
he had to pay a further R14 000.00 and that he, Booth,
would
then ‘
list the case’
with the Constitutional Court.
[17]
The applicant contends that the delay in
the matter was not because of any inertia on his part but was caused
by the ‘
organs of state’
responsible for the proper administration of justice. He states that
his health had deteriorated over the years, that he had suffered
a
heart attack in February 2015 and that because of the ‘
undue
and negligent delay’
caused by
the state, his personal circumstances have changed so drastically
that it warrants this Court ‘
interfering’
with the sentence he faced. He stated further that his trial dragged
on for 17 years of which the last nine years could be attributed
to
the negligence of the state. He adds that he was diagnosed with major
depression during 2012, is on medication for this condition
and is
also suffering from diabetes. He states that he suffered a stroke on
11 February 2015 and another stroke on 24 February
2015.
[18]
The applicant expresses the view that the
treatment he received during the trial and the fact that he had spent
14 months in prison,
and reported for nine years at the Worcester
police station, combine to render the sentence imposed upon him
cruel, inhuman and
degrading. He submits that he has paid his debt to
society and that his short term imprisonment would serve no purpose.
Finally,
he contends that should he be required to serve his sentence
this will amount to an infringement of his right to a fair trial; his
right to dignity and his right to freedom of person including the
right not to be punished in a cruel, inhuman or degrading way.
Although in his founding affidavit the applicant appears to rely on
the delay between his conviction in April 2000 and finally
being
called upon to serve his sentence in January 2015, in argument,
however, his counsel made it clear that he relied only on
the delay
between the dismissal of the appeal by the Supreme Court of Appeal
and the issuing of the Notice to Surrender.
[19]
On behalf of the second respondent, the
Deputy Director of Public Prosecutions, Western Cape, Mr W Tarantaal,
deposed to an affidavit
opposing the relief sought. Amongst the
submissions he made were that this Court had no jurisdiction to
entertain the application,
it being in effect a belated appeal by the
applicant to the incorrect court. He denied that the delay in the
matter was not due
to any inertia on the part of the applicant,
pointing out that there was no affidavit from his former attorney
regarding what was
done to pursue any appeal to the Constitutional
Court nor was there any proof that the said attorney had been given
the required
financial instructions to pursue the appeal.
[20]
Mr Tarantaal further denied that the state
was to blame for the lapse of time since the finalisation of the
appeal in the Supreme
Court of Appeal and pointed out that, other
than the inquiries he allegedly made of his attorney, the applicant
did not follow
up on the matter with any state office. He denied that
any of the applicant’s constitutional rights were infringed.
THE
ISSUES
[21]
The first issue to be considered is whether
the Court has the jurisdiction to entertain the application. Assuming
this to be the
case the remaining issues are whether the delay
between the dismissal of the applicant’s appeal to the Supreme
Court of Appeal,
and his being served with a Notice to Surrender is
such as to constitute an infringement of his right to a fair trial,
his right
to dignity and his right to personal freedom and not to be
treated in a cruel, inhuman or degrading way. Finally, assuming that
one or more of his constitutional rights have been infringed, the
question is whether the applicant is entitled to the relief which
he
seeks, namely, that he be deemed to have served his sentence or some
lesser relief.
JURISDICTION
[22]
On behalf of the applicant it was contended
that this Court had the jurisdiction to entertain the application in
terms of sec 169(1)(a)
of the Constitution, Act 108 of 1996 (‘the
Constitution) read with sec 172(1)(b). The former section provides
that a High
Court may decide:
‘
any
constitutional matter, except a matter that –
(i)
the Constitutional Court has agreed
to hear directly in terms of section 167(6)(a); or
(ii)
is assigned by an Act of Parliament
to another court of a status similar to a High Court; …’
[23]
Section 172(1)(b) provides that when
deciding a constitutional matter within its power, a court ‘
may
make any order that is just and equitable’
.
Section 167(4) of the Constitution sets out those matters which only
the Constitutional Court may determine, none of which encompass
a
matter such as the present application.
[24]
On behalf of the second respondent it was
contended that although the applicant claimed that the application
was neither an appeal
against nor a review of the sentence imposed on
him, in substance it was indeed an appeal against sentence since the
relief sought
would necessarily imply an interference with the
sentence already confirmed by the Supreme Court of Appeal. In any
event, it was
further submitted, any interference with the sentence
would amount to an impermissible incursion into the functions of the
executive
and would constitute a misdirection since the Court would
effectively be determining an early release of the applicant from
imprisonment.
There may well be force in these arguments but the real
question is does this Court have jurisdiction to entertain the
application?
[25]
If
sec 299
of the
Criminal Procedure Act
confers
on a judicial officer (in this case the first respondent) a
discretion to withhold the issuing of a warrant of arrest in
circumstances
which justify that, then the applicant can advance
those circumstances before the first respondent. It would not be for
this Court
to intervene before those proceedings are complete. Nor
should I be understood as suggesting that the circumstances relied on
by
the applicant would necessarily justify a decision by the
magistrate not to issue a warrant of arrest. Be this as it may, I
must
deal with the application in the form it has been presented to
this Court.
[26]
In my view this Court does have
jurisdiction to consider this application for two main reasons.
Firstly,
sec 169(1)(a)
, read with the provisions of
sec 172(1)(b)
bestows wide powers on the High Court to determine constitutional
matters which are not in the sole province of the Constitutional
Court and this application appears to fall within the parameters of a
constitutional matter which can be determined by the High
Court.
Secondly, the applicant expressly disavows any direct challenge,
whether by way of appeal or review, against the sentence
which he
seeks to avoid serving. That sentence was imposed by the Wynberg
Magistrates Court and not by the High Court or the Supreme
Court of
Appeal. Those courts did no more than entertain an appeal against the
applicant’s conviction and sentence and dismiss
them. In the
circumstances this Court appears to be the appropriate court to at
least entertain a challenge, based on constitutional
grounds external
to the merits of the conviction and sentence, in which the applicant
seeks to avoid serving the sentence the Wynberg
Magistrates Court
imposed upon him.
[27]
In this latter regard it must also be taken
into account that the applicant does not seek to set aside the
sentence or have it declared
null and void. In terms of the relief
sought the sentence will stand, but will be deemed to have been
served by the applicant.
It is also relevant that the main basis for
relief sought are alleged infringements of the applicant’s
constitutional rights,
there being no serious or sustained attempt to
challenge the merits or the procedural fairness of either the
conviction or the
sentence in any of the three Courts through which
the matter has passed.
HAVE
THE APPLICANT’S CONSTITUTIONAL RIGHTS BEEN INFRINGED?
[28]
The primary issue is whether any delay
between the dismissal of the applicant’s appeal by the Supreme
Court of Appeal and
his being called upon to surrender himself
involved an infringement of the applicant’s constitutional
rights.
[29]
The first such right which the applicant
relies upon is his right to a fair trial. In
Sanderson
v Attorney General, Eastern Cape
1998
(2) SA 38
, the Constitutional Court was faced with an application for
a stay of prosecution resulting from a delay in the prosecution and
was required to consider what factors had to be taken into account in
assessing whether a lapse of time was reasonable. It considered
that
three of the most important factors bearing on the enquiry were the
nature of the prejudice suffered by the accused, the nature
of the
case and the systemic delay. Writing for the Court, Kriegler J at
para 33, stated as follows regarding the question of which
party
might be responsible for the delay:
‘
On
a related issue, I would suggest that if an accused has been the
primary agent of delay, he should not be able to rely on
it in
vindicating his rights under
s 25(3)(a).
The accused should not be
allowed to complain about periods of time for which he has sought a
postponement or delayed the prosecution
in ways that are less
formal.’
[30]
Regarding the remedy sought, a stay in
prosecution, Kriegler J at para 38 stated as follows:
‘
Even
if the evidence he had placed before the Court had been more damning,
the relief the appellant seeks is radical, both
philosophically and
socio-politically. Barring the prosecution before the trial begins -
and consequently without any opportunity
to ascertain the real effect
of the delay on the outcome of the case - is far-reaching. Indeed it
prevents the prosecution from
presenting society's complaint against
an alleged transgressor of society's rules of conduct. That will
seldom be warranted
in the absence of significant prejudice to the
accused.’
[31]
In my view these dicta are applicable to
the present matter, two important considerations being the extent to
which the applicant
has been responsible for any delay suffered and
the radical nature of the relief which he seeks, namely, that his
sentence be deemed
to have been served.
[32]
Before considering these factors, however,
closer regard must be had to the applicant’s reliance on his
right to a fair trial
and, in particular, as is set out in sec
35(3)(d) of the Constitution, an accused’s right ‘
to
have their trial begin and conclude without unreasonable delay’
.
In my view a fair trial would also encompass any appeal procedures
consequent upon the trial. However, after the applicant’s
appeal to the Supreme Court of Appeal was dismissed, by any
definition his trial had concluded since it is common cause that
thereafter,
notwithstanding what his intentions may have been, no
further step was taken by or on behalf of the applicant to pursue any
further
appeal. In the circumstances it is doubtful whether he can
found any claim to relief based on an infringement of his right to a
speedy and expeditious trial after 11 September 2006.
[33]
The delay of slightly more than eight years
between the applicant’s arrest and the dismissal of his appeal
by the Supreme
Court of Appeal cannot be taken into account at this
stage for at least two reasons. Firstly, any delay would or could
have been
taken into account by the Supreme Court of Appeal when it
confirmed his sentence in September 2006. Secondly, apart from the 14
month delay taken up by the review proceedings, the history of the
trial indicates that much of the delay was attributable to the
applicant himself, in particular as a result of the two appeals he
pursued.
[34]
The applicant’s real complaint lies
in the delay between the dismissal of his appeal by the Supreme Court
of Appeal and his
being formally called upon to serve his sentence,
an extraordinary period of some eight years and three months. How is
this delay
to be treated? The applicant approaches it on the simple
basis that he gave his attorney adequate instructions to pursue an
appeal
to the Constitutional Court, made regular enquiries as to its
progress and was satisfied with his attorney’s explanations
to
the effect that such appeals are inherently a slow process. As to his
belated discovery that not one step had been taken to
pursue the
appeal, he lays the blame solely at the door of his attorney. In the
result, he attributes most of the blame for the
delay to the state
for failing to notify him at a much earlier stage that he was
required to surrender himself and serve his sentence.
I regard the
applicant’s approach as highly problematic, both conceptually
and from a factual point of view.
[35]
Firstly, the applicant’s bald
assertions that he properly instructed his attorney and that the
latter was solely to blame
for taking no steps in a further appeal is
not only disputed by the second respondent but was the primary
subject of the enquiry
which was conducted by the first respondent in
the Wynberg Magistrates Court in terms of sec 299 of the Act. The
full transcript
of that inquiry was filed in this application by the
second respondent without objection from the applicant. From it
emerges that
the magistrate noted that a great deal had been said
about the applicant’s attorney, Booth, and his role in the
matter and
decided that the only way to arrive at a proper decision
was to hear him. Unfortunately Booth was unavailable but his
assistant,
an attorney, Mr Mia (‘Mia’), was called. He
testified that he was an associate in William Booth Inc and had been
in
its employment for the past 15 years. He and Booth worked together
on all matters so that each was available to stand in for the
other
if necessary. Using the file and his own recollection of events, Mia
testified that the applicant had been immediately advised
of the
dismissal of this appeal by the Supreme Court of Appeal and informed
that he would have to surrender himself to serve his
sentence. He
read a file note indicating that at that consultation it was the
applicant and his family who wanted to take the matter
further to the
Constitutional Court. It had been explained to them that any
prospects of success in such an appeal were very slim.
Nonetheless
the instruction to approach the Constitutional Court was accepted and
the applicant was asked to furnish a deposit
of R25 000.00.
[36]
Mia testified regarding numerous telephonic
attendances between 2006 and November 2008 wherein the applicant was
telephoned, or
messages were left for him to contact his legal
representative or his office, with a view to him paying the deposit
required. The
applicant had, however, either not responded or had
made promises which he had failed to keep. By January 2015 the
deposit had
still not been paid. It was as that stage that the
applicant had been galvanised into action by the serving upon him of
the Notice
to Surrender, and he then brought that notice into the
office. Mia summed up his own evidence by stating that his firm had
not
received full financial instructions notwithstanding numerous
undertakings. He quoted directly from a letter dated 13 November 2006
to the applicant addressed to him at No 25 Daffodil Street, Florient
Park, Worcester (the address which the applicant furnished
in his
founding affidavit in this matter):
‘
We
refer to the above and our previous letters to you as well as our
account. I wish to record that you have not yet financially
instructed me to continue with the appeal to the Constitutional
Court. I must stress that if I do not receive these instructions,
which you had promised to give me some time ago, I will not be
responsible for not proceeding further with your Appeal. I must
advise you that the Clerk of the Court could issue a warrant for your
arrest if you have not done anything to further prosecute
your
Appeal. Please contact this office urgently within 24 (twenty four)
hours to give us your further instructions in this matter’.
[37]
Mia testified that there was no response to
that letter and quoted from another dated 30 January 2007 which again
stated in terms:
‘
I
must advise you that the Clerk of the Court could issue a warrant for
your arrest if you have not done anything to further prosecute
your
appeal’.
He also quoted from
a letter dated 25 September 2008 to the applicant stating that the
monies paid to date had covered only some
of the costs incurred and
that they ‘
urgently await your further instructions and
please contact our office on or before 6 October 2008’
. A
final paragraph in that letter, in bold letters, states ‘
(l)astly
we cannot be held responsible if the Clerk of the Court requests that
you commence with your sentence immediately’
. Mia testified
that the response from the applicant and his family had been in the
nature of promises that the matter would be
sorted out or the monies
would be obtained but these never eventuated. Under cross-examination
by the applicant’s new legal
representative, Mia conceded that
an amount of R12 500.00 of the initial required deposit of
R25 000.00 had been paid.
He denied, however, that the balance
had been paid either directly by the applicant or, as was claimed by
the applicant’s
sister, through a transfer of surplus funds
that Booth was holding on her behalf. He stated further in
cross-examination that he
had just referred to about 15 to 20 letters
written over a space of nine years referring to the applicant’s
obligation to
report and serve his sentence. He added that, even if
his firm had failed in its duty in that regard, which he did not
concede,
the applicant was an officer in the Department of
Correctional Services and was familiar with the procedures which
apply when appeals
against conviction or sentence had been exhausted.
[38]
The applicant did not give evidence but his
wife, Mrs Arendse, and his sister, Mrs R Goliath, were called to
testify. Mrs Arendse
testified that R12 500.00 had been paid by
herself and the applicant in November 2006 for the appeal and the
balance by her
sister in law, Mrs Goliath, in February 2007. She
could not produce evidence of either payment and denied ever
receiving any letters
or phone calls calling for payment as testified
by Mia. Mrs Goliath testified that at the beginning of 2007 she had
been owed some
R12 500.00 by Booth, being the balance of a
deposit which she had paid him to represent her son. Those charges
had eventually
been withdrawn against him and Booth had charged a fee
of R7 500.00. She had arranged with one of Booth’s staff
members
for the balance of these funds to be transferred to the
applicant’s account with Booth. She too could not produce any
proof
of these transactions i.e. the payment of R20 000.00 or
the transfer of funds to the applicant’s account. She did add,
however, that Booth had telephonically confirmed to her that the
transfer of R12 500.00 had been effected as per her
instructions.
[39]
At the end of the inquiry the magistrate
noted that Mia could only testify about what he saw in the file and
was not able to testify
directly about any payments made. Be that as
it may when the applicant launched the present application he
furnished no proof of
payment to Booth of the full deposit of
R25 000.00. Nor did he furnish any affidavit from his former
attorney dealing with
the question of what financial instructions had
been received and why the appeal to the Constitutional Court had not
been initiated.
[40]
There is no explanation on the papers as to
why the notice calling upon the applicant to surrender himself was
only issued in January
2015. The second respondent says no more than
that he was informed that, due to the lapse of time, none of the
personnel involved
with the matter at all relevant times were still
in the employ of the Department of Justice. Nor apparently is there
any record
of any notes or entries in the prescribed registers which
might explain the delay.
[41]
This Court does not have the benefit of a
description of what procedures are followed by the appeals clerk in
the appeal courts
to advise officials in the lower court of the
outcome of an appeal and so trigger a process of notification to an
accused who has
been released on bail to surrender him/herself in
order to serve their sentence. Clearly, such procedures must exist,
at some level,
but were not properly applied in the present case.
Certainly, to this extent some blame for the delay must attach to the
state
for the omissions of one or more its officials.
[42]
Pending his appeal to the High Court the
applicant’s bail was extended. One of its conditions was that
upon service of a written
order upon him, in the manner prescribed by
the Rules of Court, he was to surrender himself in order that effect
be given to any
sentence imposed upon him.
[43]
In the present hearing it was agreed
between counsel that following the successful application for leave
to appeal to the Supreme
Court of Appeal, the applicant’s bail
and the attached conditions had been extended subject to two further
conditions, namely,
that a notice of appeal was to be filed within 30
days and the Rules of Court relating to the appeal were to be
complied with.
The applicant’s bail conditions also drew his
attention to sec 307(3A)(a) and (b) of the Act which deal with the
situation
where an order calling on a person to surrender himself and
serve his sentence cannot be served because that person cannot be
found
at the address given by him or her. This indirectly refers the
person released on bail to the most relevant statutory provision
relating to the situation in question, which is sec 307(3). It
prescribes that it shall be a condition of release of the person
convicted that he shall at a time and place specified by the court
and upon service, in the manner prescribed by the rules of court,
of
a written order upon him or at a place specified by the court,
surrender himself in order that effect may be given to any sentence
in respect of the proceedings in question.
[44]
In my view, however, a person in the
position of the applicant who for some reason does not receive a
notice calling upon him to
serve his sentence cannot simply close his
or her eyes to this omission and proceed to blithely ignore the
sentence hanging over
his or her head as if it did not exist. At some
point, depending upon the circumstances, such a person is under an
obligation to
make reasonable inquiries as to what has transpired in
his or her appeal. At the very least, in the absence of making such
an inquiry/ies
such a person cannot lay claim to some advantage or
some relief at a later stage and thereby seek to benefit from his or
her own
wilful neglect or passivity.
[45]
This
much has been recognised in judgments of both the Constitutional
Court and the Supreme Court of Appeal. In the matter of
S
v Mthembu
[1]
the Constitutional Court dealt with an application for leave to
appeal against convictions and sentences confirmed on appeal to
the
High Court. The applicant had unsuccessfully petitioned the Supreme
Court of Appeal for leave to appeal in February 2003 whilst
he was
out on bail and, as the judgment notes, should have reported to the
Clerk of the Court in Vereeniging to serve his sentence
when leave to
appeal was refused. Instead, he did not do so and only started
serving his sentence when he was apprehended at his
home in April
2009 more than six years after the refusal of his petition to the
Supreme Court of Appeal. In refusing his application
for leave to
appeal to the Constitutional Court, that Court stated as follows:
‘
Convicted
persons out on bail pending appeal or application for leave to appeal
are under an obligation to ascertain the outcome
of their appeal
processes and to present themselves to serve their sentences if the
appeal processes fail. This obligation
in fact formed part of
the applicant’s bail conditions. The applicant was
legally represented throughout those processes.
He is an
educated person who held a senior position as a director of a
prominent football club. His allegation that for six
years he
was unaware of the outcome of the application for leave to appeal
despite repeated efforts to ascertain the outcome cannot
be
accepted.’
[46]
The Court dealt with the failure of
administrative officials to issue a warrant of arrest and effect the
arrest of the convicted
person in order for him to be committed to
prison in the following terms:
‘…
it
is clear that the dismissal of the application to the Supreme Court
of Appeal was known to the relevant administrative officials
and that
a copy of the order was forwarded to the Clerk of the Court at the
Vereeniging Magistrates’ Court soon after the
application for
leave to appeal was dismissed. This means there is no
reasonable excuse for the applicant not to have ascertained
for
himself the true position regarding the outcome of the application
for leave to appeal. Different considerations may
conceivably
apply when a person is not legally represented, indigent and
uneducated; this is certainly not such a case.’
[47]
These passages signify that a convicted
person cannot adopt a supine attitude in regard to the outcome of his
appeal proceedings
and simply lie low until such time as a notice is
served upon him or he is arrested in order to serve his sentence. The
Court went
on to express concern at the unsatisfactory situation in
which it took more than six years to arrest the applicant and made
the
following remarks which are relevant to the present matter:
‘
A
delay in the execution of a sentence not only affects the accused but
also affects the victims of the crimes and undermines the
credibility
of the criminal justice system. It is imperative that
once
a sentence is imposed it must be executed as soon as reasonably
possible and the court order must be complied with promptly.’
[48]
The remarks of Willis AJA in
S
v Malgas and others
2013 (2) SACR 343
(SCA) ZASCA 63 (8 May 2015) are also on point. There the court had
occasion to deal with a further appeal against sentence where
there
had been a delay of almost nine years after leave to appeal had been
granted by the trial court to the High Court. Throughout
this period
the appellant had been on bail pending appeal. The Court stated at
para 20 as follows:
‘
There
can be no automatic alleviation of sentence merely because of the
long interval of time between the imposition of sentence
and the
hearing of the appeal for those persons fortunate enough to have been
granted bail pending the appeal. The phenomenon whereby
inertia
descends upon an appeal, like a cloud from the heavens, once bail has
been granted to an accused after conviction and sentence,
has been
recurring with increasing frequency, especially in certain parts of
the land… . Although from time to time the
long delay between
the passing of a custodial sentence and the hearing of an appeal may
justify interference with that sentence,
it is only in truly
exceptional circumstances that this should occur. Each case must be
decided on its own facts.
The
appellants have adopted a supine attitude to the hearing of their
appeal. Their attitude to this case throughout has been to
adopt the
attitude of a nightjar in the veld: do as little as possible, hope
that nobody will notice and expect that the problem
will go away.
Fortunately for the administration of justice, the appellants do not
enjoy a nightjar’s camouflage. They may
have hidden but they
have not been invisible.
58
There can thus be no infringement of applicant’s right to a
fair (speedy) trial as he created and condoned the delay in
finalising the matter.’
[49]
It is thus quite clear that an accused or
convicted person may not on the one hand either actively or passively
unreasonably delay
his trial in one or other way and, on the other
hand, seek to claim a benefit from that delay be it in the form of a
decreased
sentence, a stay in prosecution or some other unjustified
advantage.
[50]
I have no difficulty with the proposition
that this principle extends to someone who studiously ignores the
fact that service upon
him of a notice calling upon him to surrender
himself and serve his sentence is long overdue. In such a situation
the circumstances
would have to be quite exceptional before such a
person could validly claim, when the wheels of justice finally catch
up with him,
that his constitutional rights will be infringed by
having to serve his sentence.
[51]
The applicant relies on alleged
infringements to his right to a fair trial, most notably a speedy
trial, his right to dignity and
his right not to be treated in a
cruel, inhuman or degrading way. It is of course inherent in any
sentence imposed by a criminal
court, that the convicted person’s
right to dignity and even his or her right to freedom may be
compromised by the imposition
of a sentence. There is a tension
between the interests of the individual and the interests of the
community in seeing that a system
of criminal justice is maintained
and that criminal conduct is appropriately prosecuted, denounced and
penalised. Thus, when considering
an appropriate sentence a court is
required to practice a nuanced weighing up of all the interlinked
factors in the sentencing
process. See
S
v M (Centre for Child Law as amicus curiae)
2008 (3) 232 (CC) at page 254 para [40].
[52]
The applicant has mustered a range of
personal circumstances in an attempt to justify him not serving his
sentence. These include
health considerations, both physical and
psychological and the effect it would have upon his family including
the fact that he
would lose his employment with adverse financial
consequences for all.
[53]
Some of these factors would have been taken
into account by the sentencing magistrate and on appeal, whilst
others are simply a
consequence of his changed personal circumstances
between the time when he was convicted at the age of 38 years and his
present
age of 51 years. But again, someone in the position of the
applicant can hardly delay serving his sentence for an extended
period
and then, without more, seek to rely on his changed personal
circumstances to avoid serving his sentence. In any event, upon
closer
analysis, none of these factors carry a great deal of weight.
The applicant’s physical health problems are by no means fully
borne out by the medical documentation which he annexed to
substantiate them and appear to have been exaggerated by him. As far
as his psychological difficulties are concerned, they certainly do
not appear to come close to disqualifying him from serving a
term of
imprisonment. It is noteworthy that whatever disabilities the
applicant claims in this regard he remains in fulltime employment.
Furthermore, to the extent that serving his sentence at this stage of
his life after a lengthy delay will be especially onerous
for the
applicant, he is not without remedy. All the factors which the
applicant lists in his founding affidavit in this regard
can be
raised in an application for parole.
[54]
The applicant makes much of the fact that
his right to freedom was infringed for the lengthy period during
which he reported twice
weekly to the Worcester Police station in
accordance with his bail conditions and had to seek permission to
travel outside the
Worcester area. No further details of how this
impacted upon him were presented by the applicant. I accept that
these conditions
impaired his freedom to a limited extent but the
fact that these restrictions dragged on for nine years was a simple
consequence
of the delays caused by the two appeals which the
applicant prosecuted, seemingly at a leisurely pace and, in the main,
by the
period of eight years and two months during which his legal
representative took no steps to prosecute an appeal to the
Constitutional
Court.
[55]
It is a truism that constitutional rights
are not absolute and that those rights which every citizen possesses
may be limited by
law giving effect to social interests, as
articulated by the Legislature. Section 36 of the Constitution
explicitly articulates
a limitation of rights in the following
terms:
‘
The
rights in the Bill of Rights may be limited only in terms of law of
general application to the extent that the limitation is
reasonable
and justifiable in an open and democratic society based on human
dignity, equality and freedom, taking into account
all relevant
factors, including –
(a)
the nature of the right;
(b)
the importance of the purpose of the
limitation;
(c)
the nature and extent of the
limitation;
(d)
the relation between the limitation
in its purpose; and
(e)
less restrictive means to achieve
the purpose.’
Section 36(2)
provides that ‘
except as provided in subsection 1 or in any
other provision of the Constitution, no law may limit any right
entrenched in the Bill
of Rights’
.
[56]
The
question of whether a constitutional right may justifiably be limited
gives rise to a two-stage inquiry in which it must first
be
determined whether the right in question is infringed whilst the
second stage involves the determination of whether that infringement
can be justified as a reasonable limitation of the right
[2]
.
[57]
I am prepared to assume for present
purposes that to require someone to serve a custodial sentence more
than 16 years after they
were convicted may, in certain
circumstances, breach that person’s rights to dignity, freedom
and not to be treated in a
cruel, inhuman or degrading way. If
account is taken of the fact that the bulk of the delay was caused by
the applicant exercising
his right of appeal then the conclusion
must, in my view, be that the boundaries of those rights have not
been crossed and there
has been no infringement.
[58]
If I am wrong in this conclusion, the
second stage of the inquiry is triggered and the question arises,
whether applying the provisions
of sec 36(1), there is the
justification for the limitation of the applicant’s
constitutional rights. The provisions of the
Criminal Procedure Act
which
authorise and empower the courts to try persons on criminal
charges, to convict and to sentence them is clearly a law of general
application which, on a daily basis, sees convicted persons being
deprived of their liberty through custodial sentences. The real
inquiry, however, is whether the state’s action, in seeking to
enforce the sentence after so many years, is reasonable and
justifiable taking into account all relevant factors.
[59]
In this determination I take into account
firstly that, for reasons which have not been explained, the state
was extremely tardy
in issuing the notice to the applicant calling
upon him to serve his sentence. However, as the extracts of the
various cases cited
above illustrate, where the person who seeks to
avoid or reduce the impact of a sentence by reason of delay, has
himself caused
or materially contributed to that delay then,
ordinarily speaking, he or she cannot expect to benefit from the
delay. The applicant’s
attempts to ascertain what progress was
being made with his ‘
appeal’
to the Constitutional Court were at best limited to enquiries made to
his attorney from time to time in response to which he had
received
only the vaguest of answers. The applicant is a Correctional Services
officer with nearly three decades of experience
during which he would
frequently have been exposed to the workings of the criminal justice
system insofar as it relates to the
processing of appeals and the
serving of custodial sentences. It is simply not credible that he
could have honestly believed that
his appeal was pending before the
Constitutional Court for a period in excess of seven or eight years.
[60]
The most telling evidence against the
applicant in this regard is that on the last occasion when he and his
wife made enquiries
with the applicant’s attorney, in 2012,
they were told by him that they should ‘
let
sleeping dogs lie’
. The clear
implication of this advice was that whilst the applicant continued to
enjoy his freedom nothing should be done to alert
the authorities to
the inordinate delay in whatever processes were taking place. This
evidence, it bears emphasis, was given by
the applicant’s wife
in the inquiry where, strangely, the applicant did not testify.
[61]
If one goes outside the applicant’s
version and has regard to the evidence of attorney Mia in that
inquiry, the case against
the applicant becomes even stronger. Mia’s
evidence was that the applicant did not furnish proper financial
instructions
to his attorney to pursue the appeal, ignored letters
and phone calls and was a wholly uncooperative client. The applicant
was
warned, furthermore, on many occasions, that his not furnishing
financial instructions to his attorney could place him in jeopardy
of
having a warrant of arrest issued requiring him to serve his
sentence. Although the allegation that the applicant failed to
give
adequate financial instructions and failed to respond to calls and
letters from his attorney were disputed on his behalf in
the inquiry,
it is noteworthy that the applicant did not testify and neither he,
his wife nor Mrs Goliath could back these denials
with any
documentary proof of payment.
[62]
It goes without saying that the criminal
justice system, already the subject of much criticism from various
quarters, is brought
into disrepute when delays of the order seen in
this case occur. Where, in such circumstances, convicted person who
have caused
or materially contributed to such delays are able to
benefit from that delay by avoiding serving a sentence of
imprisonment, or
by having it reduced, that disrepute can only be
exacerbated.
[63]
Taking all these factors into account, I
consider that to the extent that the applicant’s constitutional
rights to dignity,
freedom and not to be treated in a cruel, inhuman
or degrading way might have been infringed by the state’s
action in requiring
him to serve his sentence at this stage, any such
limitation of his rights is comprehensively justified and meets the
requirements
of the test envisaged in sec 36 of the Constitution. For
the reasons furnished earlier, the applicant has failed to prove any
infringement
of his right to a fair trial, more specifically to a
speedy trial. Insofar as I might be wrong in reaching this
conclusion, once
again any such infringement of his right is fully
justified taking into account all the circumstances of this matter.
[64]
The applicant having failed to establish
any actionable infringement of his constitutional rights, the relief
which he seeks, an
order declaring that his sentence must be deemed
to have been served, assuming for present purposes that such an order
could ever
be competent, cannot be granted. It follows that the Court
is also not at large to consider any other lesser relief.
[65]
In the result, for all these reasons the
application must fail. No costs are sought by the second respondent
whose representative,
Ms Galloway, is a member of its staff.
[66]
The question arises as to what course must
be followed to ensure that the applicant serves his sentence without
further delay. The
first respondent followed the correct procedure
when she commenced an inquiry in terms of sec 299 of the Criminal
Procedure Act
into whether a warrant committing the applicant to
prison for the execution of the sentence should be issued. Into that
inquiry
was folded an application by the applicant for the stay of
any warrant of arrest in terms of sec 62(3) of the Magistrates Court
Act, the proceedings culminating in an order that the warrant would
be suspended until 27 May 2015. I presume that, by necessary
implication, that order has been extended pending the outcome of this
present application. In the circumstances, the appropriate
order
would be to direct that the inquiry in terms of
sec 299
of the
Criminal Procedure Act be
referred back to the first respondent for
determination by her in the light of this judgment.
[67]
Finally, this matter has thrown up two
areas of concern which should enjoy the attention of certain
authorities. The first is the
lapse on the part of the administrative
officials in apparently failing to monitor the appeal/s initiated by
the applicant with
the eventual result that more than eight years
passed between the conclusion of the appellant’s appeal in the
Supreme Court
of Appeal and the issuing of a notice to him to
surrender himself to serve his sentence. It is obvious that there
should be protocols
and procedures to ensure that occurrences of this
nature are avoided. For these reasons I direct that a copy of this
judgment be
sent to the Regional Head of the Department of Justice
and Constitutional Development in order that he may be made aware of
this
problem and ensure that it does not recur.
[68]
The second area of concern is that a firm
of attorneys apparently took an instruction to launch an appeal to
the Constitutional
Court and, despite apparently receiving at least a
partial deposit from the applicant, took no step in furtherance of
any appeal
yet continued to represent the applicant in the ‘
appeal
’.
At this stage, however, all the facts in regard to this aspect of the
matter have not been established. In the result a
copy of this
judgment will be sent to the Cape Law Society for its consideration
and any action which it may consider appropriate.
ORDER
[69]
For these reasons the following order is
made:
1.
The application is dismissed;
2.
The postponed inquiry in terms of
sec 299
of Act 51 of 1977 relating to the applicant is referred back to the
second respondent for her determination in the light of this
judgment, as soon as possible, and in any event within not less than
14 days hereof. To this end the second respondent is directed
to
furnish a copy of this judgment and the record in this matter to the
first respondent within three (3) days of the date of this
order.
BOZALEK
J
APPEARANCES
For
the Applicant: Mr H Schölzel
Instructed
by:
For the 2
nd
Respondent: Ms S Galloway
Instructed
by: The Director of Public Prosecutions
[1]
Case
CCT 115/09
[2010] ZACC 8
[2]
S
v Zuma and Others
[1995] ZACC 1
;
1995
(4) BCLR 401
(CC) at 414