About SAFLII
Databases
Search
Terms of Use
RSS Feeds
South Africa: Western Cape High Court, Cape Town
SAFLII
>>
Databases
>>
South Africa: Western Cape High Court, Cape Town
>>
2021
>>
[2021] ZAWCHC 154
|
|
Peterson v S (A63/2021) [2021] ZAWCHC 154 (11 August 2021)
IN
THE HIGH COURT OF SOUTH AFRICA
(WESTERN
CAPE DIVISION, CAPE TOWN)
CASE
NUMBER: A63/2021
In
the matter between:
SHANNON
PETERSON
Appellant
And
THE
STATE
Respondent
POSTPONEMENT
JUDGMENT DATED 11 AUGUST 2021
KUSEVITSKY,
J
[1]
This is an application for a postponement
of a Full Bench criminal appeal which was set down for hearing on 21
July 2021. In terms
of the Notice of Set Down, the Appellant’s
heads of argument had to be filed by Monday, 24 May 2021 at the
Office of the
Director of Public Prosecutions as well as at the
office of the Registrar of this Court. The Respondent’s heads
of argument
had to be filed by Monday, 14 June 2021.
[2]
On 7 June 2021, the Respondent filed a
notice of intention to strike the appeal from the roll, as the
Appellant had failed to file
the heads of argument at all. On 19 July
2021, i.e. two days before the hearing of the matter, the Appellant
filed an application
for a postponement of the matter.
[3]
In the affidavit deposed to by the attorney
of record, Mr. Mbeko Venfolo, he
inter
alia
indicated that the lack of
compliance with the notice of set down was as a result of a failure
by the family of the Appellant to
place him in funds in order to
continue with the prosecution of the appeal. He further stated that
he had unsuccessfully attempted
to make telephonic contact with the
family to inform them of the set down date.
[4]
Mr Venfolo states that on 14 July 2021, he
was surprised when he was contacted by the Appellant’s father,
who had enquired
about the date of the appeal. A consultation was
arranged and the family was thereafter informed of the set down date
and that
if they were desirous of continuing with the prosecution of
the appeal, that they were required to place him in funds in order
for counsel to be briefed to argue the matter.
[5]
He further states that counsel was
accordingly briefed on 15 July 2021. This delay, he submits
necessitates the application for
the postponement in order for
counsel to properly prepare for the appeal and file the necessary
heads of argument.
[6]
What is concerning in this matter is the
manner in which this appeal was dealt with by the attorney for the
Appellant and the total
disregard for the rules of court. This matter
was set down on 21 April 2021 and allocated to three Judges to hear
the appeal, with
a record of 778 pages, on 21 July 2021. On the
attorney’s own version, he did not have contact with the family
until 14 July
2021, a good two months after the heads of argument had
to be filed. At no point during this time, did the attorney write to
the
office of the Registrar indicating that he was unable to contact
the family of the Appellant and that the possibility existed that
the
appeal would not be able to proceed and that in all likelihood, it
would have to be postponed.
[7]
The attorney furthermore failed to consider
that given the fact that three Judges were required to read the
record of appeal during
the recess period, that common sense and
courtesy dictated that a letter to the Senior Judge, indicating the
above difficulties,
would have been necessary so that valuable time
could have been spared in reading the record.
[8]
The failure, in my view, by the attorney to
have notified the relevant persons and officers of court, indicates
an utter disregard
for the Court and the Judiciary, and this general
lackadaisical attitude and erroneous perception that time periods can
simply
be disregarded and the relevant papers simply handed up to
court on the day of the hearing or on the day before, should not be
countenanced.
[9]
It
is trite law that postponements are merely not there for the asking.
Where a party seeks an indulgence of the court, he or she
must show
good cause for the interference with his or her opponent’s
procedural right to proceed and with the general interests
of justice
in having the matter finalised. The court is also entrusted with a
discretion as to whether to grant or refuse the indulgence.
[1]
In the unreported judgment of
Keegan
Press v Premier of Gauteng
[2]
, Boruchowitz J had occasion to deal with a postponement where
the delay was on the part of the defendant’s attorney,
the
State Attorney, for preparing for trial. The court commented,
[3]
that the inability or lack of preparedness of the second defendant in
that case was entirely due to the inaction of its attorneys
handling
the matter on its behalf and that in general, this could not form the
basis of a postponement.
[10]
In
casu
,
this is an appeal by the Appellant against his sentence, with leave
having been granted by the Supreme Court of Appeal. It is
in the
interests of justice for the Appellant in this instance, that a
postponement be granted and for the appeal to be prosecuted
as soon
as possible. This court will therefore retain the file and postpone
the matter in order for the parties to fully comply
with the
following order below.
Order:
The
Full Bench appeal is postponed to Wednesday, 27 October 2021.
The
Appellant shall file his Heads of Argument by 15 September 2021.
The
Respondent shall file its heads of Argument by 29 September 2021.
DS
KUSEVITSKY
Judge of
the High Court, Western Cape Division
I
agree, and it is so ordered:
T
NDITA
Judge of
the High Court, Western Cape Division
I
agree:
N
MANGCU-LOCKWOOD
Judge of
the High Court, Western Cape Division
Counsel
for Applicant: Advocate Filan
Instructed
by: Venfolo Attorneys
Counsel
for Respondent: Advocate M Blows
Instructed
by: NDDP
[1]
Persadh
and Another v General Motors South Africa (Pty) Ltd
2006 (1) SA 455
(SECLD)
[2]
Case
11345/OS delivered 2 November 2007
[3]
At
para 14 of the judgment