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[2023] ZAFSHC 424
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Faba v S (A128/2009) [2023] ZAFSHC 424 (31 October 2023)
IN THE HIGH COURT
OF SOUTH AFRICA
FREE STATE
DIVISION, BLOEMFONTEIN
Reportable: YES/NO
Of Interest to other
Judges: YES/NO
Circulate to Magistrates:
YES/NO
Case no:
A128/2009
In the matter between:
HENRY
FABA
Appellant
And
STATE
Respondent
CORAM:
MBHELE, DJP
et
NAIDOO, J
et
MHLAMBI, J
HEARD
ON:
28 JULY 2023
DELIVERED
ON:
31
OCTOBER 2023
JUDGMENT
BY:
MBHELE, DJP
[1]
The
appellant, was convicted on one count of robbery with aggravating
circumstances, two counts of murder, one count of attempted
murder,
one count of unlawful possession of a firearm and one count of
unlawful possession of ammunition by a single judge of this
division
on 08 April 2008. On 03 July 2008 he was sentenced as follows:
Fifteen
years’ imprisonment on Count 1;
Life
imprisonment on Count 2;
Life
imprisonment on Count 3;
Ten
years’ imprisonment on Count 4;
Three
years’ imprisonment on Count 5; and
Six
months’ imprisonment on Count 6.
[2]
Aggrieved by the outcome of the matter, the appellant successfully
applied for leave to appeal
in the trial court on 03 July 2008.
[3]
In the court
a quo
the appellant was convicted on the
evidence of the complainant in count 4 (Annarette) in respect of
charges in counts 1 –
4, a single witness who also identified
the appellant at an identification parade subsequent to the date of
the incident. The
main issue for determination in the court
a
quo
was centred around the
complainant's identification of the appellant and whether same was
sufficiently reliable to secure a conviction
against the appellant.
[4]
In his grounds of appeal the appellant submits that the court
a
quo
misdirected itself in relying on the evidence of a single
witness and in finding that the identification by Annarette was
satisfactory
and reliable in all material respects. He contends,
further that the court
a quo
erred in rejecting the evidence
of the appellant and finding that it is not possibly true.
[5]
Due to a delay in
prosecuting the appeal, the appellants have filed a substantive
application for condonation for the late prosecution
and
reinstatement of the appeal which had lapsed. The application for
condonation and reinstatement of the appeal is opposed by
the
respondent.
[6]
The chronology of events giving rise to the
application for condonation and re-instatement are as follows:
6.1
The appellant was convicted on 08 April 2008. He was sentenced on 03
July 2008 and granted leave to
appeal both his conviction and
sentence on the same day.
6.2
The record of the proceedings was received by the High Court on 26
June 2009. The notice of appeal was filed
with this Court on 28
January 2010, 18 months from the date on which leave to appeal was
granted and 7 months from the date of
receipt of the record. The
matter was set down for hearing on 23 February 2010. On the date of
hearing the appellant withdrew his
mandate from Legal Aid SA and
instructed a private Attorney.
6.3
Appellant proceeded with his appeal under the case no:
A128/2009 and on the 22
nd
of June 2010 the matter was placed before honourable justices Van Zyl
J, Mocumie J and Jordaan J
[1]
,
it was on that day postponed
sine
die
due
to complications with his Attorney.
6.4
On 23 of August 2010 the Appeal was removed from the Roll by
Honourable justices Van Der Merwe J, Van
Zyl J and Mthembu AJ.
6.5
Legal Aid South Africa was again instructed to assist the Appellant
and to prosecute the Appeal after
his attorney was struck from the
roll, it is not clear on which date was Legal Aid SA’s mandate
reinstated.
6.6
Between 2011 and 2016 he received no report from Legal SA on the
progress of the matter.
6.7
In 2016 the appellant was informed by an attorney from Legal Aid SA,
whose name he cannot remember,
that his matter could not be enrolled
due to the record having been misplaced.
6.8
In 2019 he terminated his mandate with Legal Aid SA and instructed
his current Attorneys.
6.9
The appeal was set down for argument on 27 July 2020 and was again
struck off the roll due to the fact
that it had lapsed and no proper
application for Condonation had been filed.
6.10
According to the Appellant, his family could not raise the necessary
funds to prosecute the appeal thereafter,
they only managed to raise
the required funds around September 2022.
6.11
By
way of a letter dated 11 July 2022 the registrar notified the
appellant and the respondent that there had been no activity in
the
matter since 27 July 2020 when it was struck off the roll for the
appellant’s failure to apply for condonation and reinstatement
of the appeal and informed the parties that unless they respond
within 5 days from the date of the letter the matter would be removed
from the system and sent to the archives.
6.12
The appellant only filed his application for condonation on 07
December 2022, 4 and a half months from the
date of the registrar’s
letter and 2 years and 16 days from the date on which the matter was
removed from the roll in 2020.
[7]
It is common cause that on 16 November 2006 at Rietvlei farm near
Verkeerdevlei in the district
of Bloemfontein Eugene Fourie and his
wife Annamarie Fourie were attacked, brutally shot and killed by
robbers who stormed their
farm while their daughter Annarette Fourie
survived the attack and sustained gunshot wounds on her body.
[8]
Annarette Fourie identified the appellant at the identification
parade. Her testimony was to the
following effect. Her father was
outside at approximately 20h00 when he heard gunshots being fired. At
that time, she was in the
kitchen. Her mother came to her in the
kitchen to tell her that her father has been shot. At first she
thought that her father
was firing warning shots to scare away
animals. Her mother devised an unsuccessful plan for them to escape
through the backdoor.
While her mother was still struggling to open
the backdoor through which they were going to escape to a room
outside the door opened
and she saw the appellant entering the
kitchen. He was a man light in complexion with an earring on his left
ear.
[9]
At that time Annarette’s eyes were fixated at the door because
she was hoping that her father
would come in through the same door
from outside. She at that time did not believe that her father was
shot. The appellant fired
shots at Annarette and her deceased mother
while at a distance of about 3 metres. The lights were on in the
kitchen when the accused
entered. They both fell on the ground. She
observed the appellant when he entered the room and at the time he
was firing many shots
at her and her mother. His distinctive light
complexion and facial appearance was captured in her mind and she
would never forget
the appellant’s face. Although the incident
did not last long to her it felt like a lifetime. She denied that she
ever saw
the appellant on the farm before the incident.
[10]
Inspector Van Rhyn, an Investigating officer, arrested the appellant.
He testified to the following effect:
When they arrived at the
appellant’s place of abode he tried to flee and in the process
he fired shots at the police who returned
fire. Upon arrest he was
found in possession of a 9mm pistol with ammunition. He sustained
injuries during the shooting and was
taken to Pelonomi hospital.
[11]
The appellant denied any involvement in the offences he was charged
of and that he was ever at Annarette’s
family farm on the date
of the incident. He however admits that he knows the farm and that
Annarette and her husband were regular
visitors on the farm. They
used to visit the farm over weekends. His knowledge of the activities
on the farm, is according to him,
attributable to his alleged
employment by one of the deceased’s relatives. He stated that
he was at his home during the incident.
[12]
The appellant’s wife testified and confirmed the appellant’s
alibi
that he was at home on the date of the incident. It,
however, emerged during cross examination that she was given a note
by the
appellant in which the appellant told her to tell the court
a
quo
that he was at home with her on the date of the incident.
[13]
It is well established that condonation cannot be had just for
asking. It is an indulgence extended to a
party who failed to comply
with the rules of court. A party seeking an indulgence must show
cause why the court must condone its
non-compliance with the rules.
The applicant must provide reasons for the delay in sufficient detail
to enable the court to understand
the real cause for the delay.
[14]
It is trite that the following factors must be considered by a court
from which condonation is sought: (a)
the degree of lateness or
non-compliance with the prescribed time frame; (b) the explanation
for the lateness or failure to comply
with the prescribed time
frames; ( c) prospects of success or bona fide defence in the main
case (d) the importance of the case;
( e) the respondent’s
interest in the finality of the judgment; (f) the convenience of the
court; (g) avoidance of unnecessary
delay in the administration of
justice. See
Foster
v Stewart Scott Inc.
[2]
where Froneman, J remarked as follows:
‘
It
is well settled that in considering applications for condonation the
court has a discretion, to be exercised judicially
upon a
consideration of all the facts. Relevant considerations may include
the degree of non-compliance with the rules, the explanation
therefor, the prospects of success on appeal, the importance of a
case, the respondent's interest in the finality of the judgment,
the
convenience of the court, and the avoidance of unnecessary delay in
the administration of justice, but the list is not exhaustive.
These
factors are not individually decisive, but are interrelated and must
be weighed one against the other. A slight delay and
good explanation
for the delay may help to compensate for prospects of success
which are not strong. Conversely, very good
prospects of success on
appeal may compensate for an otherwise perhaps inadequate explanation
and long delay. See, in general,
Erasmus
Superior
Court Practice
at
360-366A.” See Also
Melane
v Santam
[3]
and
National
Union of Mineworkers v Council for Mineral Technology
.’
[4]
[15]
In
Brummer
v Gorfil Brothers Investments (Pty) Ltd
[5]
the
constitutional court held that an application for condonation should
be granted if it is in the interest of justice and be refused
if not
in the interest of justice. The interest of justice must be
determined by reference to all relevant factors. i.e. factors
laid
down in
Melane
supra
.
See also
Grootboom
v National Prosecuting Authority & another
[6]
where the court said the following:
“
[T]he
standard for considering an application for condonation is the
interests of justice. However, the concept ‘interests
of
justice’ is so elastic that it is not capable of precise
definition. As the two cases demonstrate, it includes:
the
nature of the relief sought; the extent and cause of the delay; the
effect of the delay on the administration of justice and
other
litigants; the reasonableness of the explanation for the delay; the
importance of the issue to be raised in the intended
appeal; and the
prospects of success. It is crucial to reiterate that both
Brummer and Van Wyk emphasise that the ultimate
determination of what
is in the interests of justice must reflect due regard to all the
relevant factors, but it is not necessarily
limited to those
mentioned above. The particular circumstances of each case will
determine which of these factors are relevant.
It is now trite that
condonation cannot be had for the mere asking. A party seeking
condonation must make out a case entitling
it to the court’s
indulgence. It must show sufficient cause. This requires
a party to give a full explanation
for the non-compliance with the
rules or court’s directions. Of great significance, the
explanation must be reasonable
enough to excuse the default.
…
The
interests of justice must be determined with reference to all
relevant factors
.
However,
some of the factors may justifiably be left out of consideration in
certain circumstances. For example, where the
delay is
unacceptably excessive and there is no explanation for the delay,
there may be no need to consider the prospects of success.
If
the period of delay is short and there is an unsatisfactory
explanation but there are reasonable prospects of success,
condonation
should be granted. However, despite the presence of
reasonable prospects of success, condonation may be refused where the
delay is excessive, the explanation is non-existent and granting
condonation would prejudice the other party. As a general
proposition the various factors are not individually decisive but
should all be taken into account to arrive at a conclusion as
to what
is in the interests of justice.”’
[16]
In
Saloojee
and Another NNO v Minister of Community Development
[7]
Steyn
CJ made the following remarks when dealing with lack of diligence on
the part of an Attorney and how a litigant who chose
such an attorney
should not be exonerated from the normal consequences of such
relationship:
‘
I
should point out, however, that it has not at any time been held that
condonation will not in any circumstances be withheld if
the blame
lies with his attorney. There is a limit beyond which a
litigant cannot escape the results of his attorney’s
lack of
diligence, or the insufficiency of the explanation tendered. To
hold otherwise might have a disastrous effect on
the observance of
the Rules of this Court. Considerations
ad
misericordiam
should not be allowed to
become an invitation to laxity. In fact, this Court has lately
been burdened with an undue increasing
number of applications for
condonation in which the failure to comply with the Rules of this
Court was due to neglect on the part
of the attorney. The
attorney, after all, is the representative whom the litigant has
chosen for himself, and there is little
reason why, in regard to
condonation of a failure to comply with a Rule of Court, the litigant
should be absolved from the normal
consequences of such a
relationship, no matter what the consequences of the failure are.’
[17]
In
Du
Plessis v Wits Health Consortium (Pty) Ltd
,
[8]
the Court held as follows:
‘
It is clear from
the above and other judgments that a claim of lack of funds on its
own cannot constitute reasonable explanation
for the delay. In other
words, when pleading lack of funds as the cause of the delay, the
applicant needs to provide more than
a mere claim that the reason for
the delay is lack of funds. In this respect, the applicant has to
take the court into his or her
confidence in seeking its indulgence
by explaining when, not only that he or she finally raised funds to
conduct the case, but
also how and when did he or she raise those
funds. The 'when' aspects of the explanation are important, as it
provided the courts
with information as to whether there was any
further delay after raising the funds and whether an explanation has
been provided
for such a delay.’
[18]
It took 15 years for this matter to be argued before court. The
notice of appeal was filed on 28 January
2010, 18 months from the
date on which leave to appeal was granted. There is no explanation
for this delay. The matter came before
court for argument for the
first time in July 2010. The appellant attributes failure to
prosecute his appeal timeously to lack
of diligence on the Attorney
who assisted him at Legal Aid SA between 2011 and 2016 and lack of
funds. The matter was inactive
from 2010. There is no explanation of
the delay between August 2010 and sometime in
2011 when he gave instructions to Legal Aid SA to prosecute
his appeal.
[19]
The appellant terminated the mandate of the Legal Aid SA Attorney who
came to court to argue his appeal in
February 2010 and instructed Mr.
Khalaki who did nothing to prosecute the appeal. It is not clear on
which date he reinstated the
Legal Aid SA mandate, what is apparent
is that sometime in 2016 he spoke to a Mr. Mothibi. Even if we
were to put the blame
at the door of Legal Aid SA for the lapse of
time between 2011 and 2016 there is still no explanation for an
inordinate delay between
27 July 2020 and December 2022 when an
application for condonation was filed.
[20]
He knew on 27 July 2020 that an application for condonation was
required. As soon as it became clear that
his appeal had lapsed and
it required reinstatement he ought to have approached court for an
application for condonation and reinstatement
which he did not do.
Lack of funds cannot be accepted as a reasonable explanation for the
delay. Rules exist for a reason, they
are an integral part of our
justice system. They serve as guidelines to ensure order, fairness
and certainty. There would
be chaos in our courts if courts
were to allow litigants to flagrantly disregard the rules of court
and provide no explanation
for non- compliance thereof. If courts
were to allow lack of funds as an excuse to not comply with the
rules, no matter would see
finality. There is, in any event, no
explanation for the delay between September 2022 when funds were
secured and 7 December
2022 when application for condonation was
filed. Even after a letter was written to the appellant’s
Attorneys to enquire
about their intentions on the matter it took
them 5 months to file the condonation application.
[21]
The explanation given by the appellant is far from adequate and is
unreasonable. The appellant left long periods of delay
unaccounted for. It is in the interest of justice for any matter to
be finalised
as soon as possible. The matter came to court 17 years
from the date of commission of the offence and more than 15 years
from the
date on which application for leave to appeal was granted.
The inordinate delay on this matter is not in the interest of
justice.
[22]
The next question to ask is whether there are prospects of success in
the matter. The evidence brought by
the state shows that an
eyewitness identified the appellant and gave a clear description of
him. The witness explained that her
eyes were focussed on the door
through which the appellant entered because she had hoped to see her
father walking in through the
same door. She said although she
saw the appellant’s face for a few seconds, it felt like
eternity, his image stuck
in her mind and she would never forget it.
The appellant did not deny that he wore an earring on his left ear
during that period
as described by Annarette.
The
application for condonation must fail, both because of the fact that
no proper explanation was given for the delays and because
there are
no reasonable prospects of success on appeal.
[23]
I accordingly make the following order:
ORDER:
1.
The application for condonation is dismissed
2.
The appeal is struck off the roll
N.M. MBHELE, DJP
I concur.
S. NAIDOO, J
I concur.
J. J. MHLAMBI, J
Appearances:
For
the Appellant:
Mr.
P. Peyper
Peyper
Austen Inc. Attorneys
Bloemfontein
For
the Respondent:
Adv.
S. Giorgi
Director
Public Prosecutions
Bloemfontein
[1]
The Appellant’s Attorney was struck off the roll of Attorneys.
[2]
(1997)
18 ILJ 367 (LAC) at page 369
[3]
1962 (4) SA 531
(A) at 532 C-F.
‘
In
deciding whether sufficient cause has been shown, the basic
principle is that the Court has a discretion, to be exercised
judicially upon a consideration of all the facts, and in essence it
is a matter of fairness to both sides. Among the facts usually
relevant are the degree of lateness, the explanation therefor, the
prospects of success, and the importance of the case. Ordinarily
these facts are interrelated: they are not individually decisive,
for that would be a piecemeal approach incompatible with
a true
discretion, save of course that if there are no prospects of success
there would be no point in granting condonation.’
[4]
National Union of Mineworkers v Council for Mineral Technology
[1999] 3 BLLR 209
at 211.
[5]
[2000] ZACC 3
;
2000
(2) SA 837
(CC) at 839.
[6]
2014
(2) SA 68
(CC at para 22-23 and 51.
[7]
1965
(2) SA 135 (A)
[8]
[
2012
JDR 1523 (LC)
at
para 16.