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[2020] ZAECPEHC 17
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Walton v S (CC 9/2017) [2020] ZAECPEHC 17 (9 June 2020)
NOT REPORTABLE
IN THE HIGH COURT OF
SOUTH AFRICA
(EASTERN CAPE LOCAL
DIVISION, PORT ELIZABETH)
Case
No: CC 9/2017
Date
heard: 3 June 2020
Date delivered: 9 June
2020
In the matter between:
DEWI
DELGADO
WALTON
Applicant
AND
THE STATE
Respondent
JUDGMENT
Goosen J
[1]
The applicant seeks leave to appeal against
his convictions. The applicant was convicted of murder; attempted
murder, unlawful possession
of a firearm and unlawful possession of
ammunition. Judgment on conviction was delivered on 5 July 207.
On 12 July 2017,
the applicant was sentenced to life imprisonment on
the murder charge; 8 years imprisonment for the attempted murder; 15
years
imprisonment for the unlawful possession of a semi-automatic
firearm and 18 months imprisonment for the possession of ammunition.
[2]
At the trial, the applicant was represented
by Mr Saziwa.
[3]
On 24 July 2017 a notice of application for
leave the appeal was filed on behalf of the applicant. It appears
from the notice that
Mr Daubermann, who now appears for the
applicant, was instructed to prosecute the application for leave. It
is to be noted that
Mr Daubermann who filed an application for leave
to appeal on behalf of Mr Trenton Ambraal, who was the applicant and
co-accused
at trial. The application, however, is only proceeding in
respect of the applicant.
[4]
I should indicate that the fact that a
notice of application for leave to appeal was filed was not drawn to
my attention. This is
despite the clear provisions of Eastern Cape
Rule 10.
[5]
Rule 10 deals with applications for leave
to appeal and provides as follows:
(a)
Applications
for leave to appeal shall be heard in dates to be arranged by
the legal representatives of the parties in consultation
with the
judge who is to hear the application.
(b)
Within
10 court days of the application for leave to appeal being filed,
the legal representatives of the parties are
to approach the judge
who is to hear the application in order to attempt
to arrange a mutually
convenient date for the matter to
be heard.
(c)
In
the event of the judge concerned not being approached within the
aforementioned period of 10 days or such longer period to which
the
judge may agree, or in the event of it not being possible within such
period as the judge may deem to be reasonable,
the judge will
determine a date and give the parties at least 10 court days’
notice thereof.
(d)
Once
the date for hearing of the application for leave to appeal has
been determined, the registrar will issue a notice of
set down
stipulating the date and time of the hearing and deliver a copy
thereof to each party.
[6]
The Rule serves several important purposes.
The first and most important is that it requires that application for
leave to appeal
be prosecuted to finality promptly. There are
important reasons for such requirement. It seeks to ensure that the
appeal process
itself is commenced with expedition and it enables the
first stage of the process, namely the application for leave, to
occur when
the trial or application proceedings are still fresh in
the minds of the parties and the judge.
[7]
The second purpose is to facilitate the
hearing of the application in circumstances when the judge is usually
engaged in other judicial
functions. It is for this reason that the
Rule casts an obligation on the legal representatives to approach the
judge to make such
an arrangement.
[8]
In order for the Rule to achieve its
purpose it is essential that the Registrar
and
the legal representatives comply therewith. In every instance the
Registrar must, upon receipt of a notice of application for leave,
draw same to the attention of the judge. The primary obligation
however, is that of the legal representatives and, since the
applicant
is
dominus litus
,
it is the applicant’s legal representative who must take the
lead in arranging to see the judge concerned.
[9]
In this case the Rule was ignored. The
result is the passage of almost 3 years since judgment was delivered.
When I was approached
during the course of last week I enquired of Mr
Dauberman why no application for condonation had been filed. I was
told that none
was required since the application had in fact been
commenced timeously. I indicated that I required an explanation.
[10]
A supplementary affidavit has now been
filed by the applicant explaining the delay. The applicant states
that he was dissatisfied
with his erstwhile attorney and accordingly
instructed Mr Dauberman to apply for leave to appeal. Mr Dauberman
was paid an amount
of R10 000, 00 as a deposit. He
indicated, however, that he would not proceed with the application
until his fees had
been paid in full. He also indicated that a full
transcript of the evidence would be required.
[11]
The R10 000, 00 was repaid to the
depositor in October 2017. The applicant was only able to raise money
paid by his mother
in monthly instalments from December 2018. Those
instalments were paid into Mr Daubermann’s trust account. In
March this
year the transcript was acquired and Mr Daubermann
accordingly thereafter proceeded to prepare the amended application
for leave
to appeal.
[12]
An inability to pay for legal services
ought not to prejudice a party who genuinely and
bona
fide
wishes to prosecute a particular
matter. In this instance the applicant had apparently lost confidence
in his erstwhile representative
and the Legal Aid Board who
instructed him. He, therefore, had no option but to seek to instruct
a private attorney and pay his
reasonable fee. I accept that the
applicant had clearly evidenced an intention from the outset to seek
leave to appeal.
[13]
However, Mr Dauberman’s conduct of
the application cannot be ignored. It appears that as early as 11
July 2017 he held an
instruction to seek leave to appeal. He held R10
000, 00 in trust for this purpose. He acted upon that instruction and
filed a
Notice of Application for Leave. When this notice was filed
he had already indicated to his client that he would not take any
steps
until his fees were paid and he had been furnished with a
transcript.
[14]
Despite the fact that he was on record he
did not comply with Rule 10, nor did he seek an extension of time as
is provided for in
Rule 10.
[15]
In October 2017 the R10 000, 00 deposit was
repaid and it was not until December 2018 that he started receiving
payment. In my view,
such flagrant disregard of the Rules is not
acceptable. The fact that no condonation for late prosecution of an
application for
leave is not technically required is no excuse. An
explanation for non-compliance with Rule 10 was required and such
explanation
ought to have been incorporated in the affidavit.
[16]
Legal practitioners do not only have a duty
to their clients. They also have a duty to the court. That duty
requires them to act
with absolute fidelity; to comply with the
procedural rules and to facilitate the proper administration of
justice. In the case
of applications such as this that requires that
the application be prosecuted expeditiously and where that is not
possible, to
provide an adequate explanation for the delay as soon as
it is apparent that such delay will occur.
[17]
I now turn to the merits of the
application. In the light of the conclusion to which I have come it
is unnecessary to deal with
each of the grounds of appeal advanced by
the applicant. It suffices to state that the grounds centre upon the
trial court’s
acceptance of the evidence of the state witness
Pregnathon Booth as credible and reliable. Booth had identified the
applicant and
his co-accused as the persons who had pursued him and
the deceased and fired multiple shots at them. Booth was able to make
his
escape. The challenge to the acceptance of Booth’s evidence
is premised on the admission of evidence relating to a previous
inconsistent statement made by Booth. It is submitted that the court
erred in allowing the state to lead evidence relating to this
statement in which Booth contradicted his early statement to the
police regarding the involvement of the perpetrators. The state
had
presented the evidence to explain the circumstances in which Booth
came to make what was referred to as a ‘withdrawal
statement’
deposed to before an attorney apparently in exchange for payment of
money promised by the perpetrators or persons
associated with them.
[18]
Although I am not persuaded that the
grounds of appeal establish a reasonable prospect of success on
appeal, further evidence has
come to light which may induce a court
of appeal to interfere. Mr Daubermann submitted an affidavit
explaining that Booth had pleaded
guilty to a charge of perjury a few
days before he had testified at the trial. The charge of perjury
concerned a similar instance
in which he had made a statement to
police identifying persons who had fired shots at him and then
subsequently made a further
statement ‘withdrawing’ said
allegations. He was then charged with perjury.
[19]
The new evidence was presented to explain
that the applicant proposed to apply for leave to the appeal court to
receive the evidence
on the basis that it relevant to that which was
before the trial court and may bear upon the findings made by the
trial court.
[20]
Mr Baartman, on behalf of the state,
indicated that no dispute was being raised regarding the fact that
Booth had been charged with
and pleaded guilty to perjury. He
nevertheless submitted that leave to appeal should be refused.
[21]
In my view this latter submission would
require that this court would in effect rule upon the admission of
the new evidence. That
it cannot do. The only question that is to be
answered is whether there is a prospect that the new evidence may be
received on
appeal and whether if so received it may bear upon the
findings made by this court at trial. It seems self-evident that the
evidence
is relevant and that there is a reasonable prospect that it
would be received. On this basis, it seems to me, leave to prosecute
an appeal on the grounds advanced ought to be granted.
[22]
In the result I make the following order:
The
applicant is granted leave to appeal to the Full Court of this
Division against the convictions entered against him on 5 July
2017.
_____________________
G.G. Goosen
JUDGE OF THE HIGH
COURT
Obo the
Applicant: Mr
P. Daubermann
Newton
Park, Port Elizabeth
Tel:
(041) 364-0384
Obo the
Respondent: Advocate
G. Baartman
NDPP,
North End, Port Elizabeth
Tel:
(012) 842 1400