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[2023] ZAECMKHC 81
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Nelson v Potgieter and Others (2504/2020) [2023] ZAECMKHC 81 (8 August 2023)
FLYNOTES:
CRIMINAL – Legal representation –
Choice
of representative
–
Expressed
a preference for services of Mr Bence but did not oppose
continuing with Mr Greeff – Right to choose a legal
practitioner is not an absolute right – Did not contend Mr
Greeff’s expertise was inadequate or that his involvement
resulted in infringement of applicant’s right to a fair
trial – Inadequacy of explanation, weak prospects of
success
and prejudice caused to respondents outweigh condoning
unreasonable delay – Application dismissed –
Superior
Courts Act 10 of 2013
,
s 22(1).
IN
THE HIGH COURT OF SOUTH AFRICA
(EASTERN
CAPE DIVISION, MAKHANDA)
CASE NO. 2504/2020
In
the matter between:
LIAAN
NELSON
Applicant
and
JOHAN
POTGIETER
First respondent
THE
DIRECTOR OF PUBLIC PROSECUTIONS,
EASTERN
CAPE
Second respondent
TIM
VAN
STADEN
Third respondent
JUDGMENT
LAING
J
[1]
This is an application for the review and setting aside of the trial
proceedings
that took place during the period of 14 March until 16
August 2013 in the Port Elizabeth Regional Court. The applicant also
seeks
condonation for the late institution of the present application
proceedings.
APPLICANT’S
CASE
[2]
The applicant, together with the third respondent, had been charged
with
murder and other offences. He had been represented by a Mr
Greeff initially, who had been appointed by the Legal Aid Board. The
applicant had informed Mr Greeff, prior to the commencement of trial
on 14 March 2013, that he wished to terminate his mandate
and to
instruct a Mr Bence, who was an attorney in private practice.
Consequently, Mr Greeff conveyed this to the magistrate, who
has been
cited in this application as the first respondent. The applicant
personally confirmed that this was his wish.
[3]
The first respondent, however, refused to postpone the trial to give
effect
to the applicant’s wish. The applicant alleges that the
first respondent compelled him to continue with Mr Greeff. The first
respondent interrupted the applicant constantly and allegedly refused
to listen to his explanation for why he wanted Mr Bence to
represent
him. It is the applicant’s contention that he was placed under
extreme pressure by the first respondent to proceed.
He attaches an
extract from the transcription of the record to demonstrate this,
asserting that he was denied his constitutional
right to a fair
trial, which included the right to be represented by a legal
practitioner of his own choice.
[4]
Ultimately, the first respondent convicted the applicant on 17 July
2013
on the charge of murder and sentenced him, on 16 August 2013, to
life imprisonment. A period of five years’ imprisonment was
imposed for the remaining charges, to run concurrently. The
applicant’s subsequent application for leave to appeal was
unsuccessful.
His petition to the High Court was dismissed on 8
August 2014.
[5]
The applicant avers that he was unhappy, for many years, about the
way
the proceedings had been conducted. He says, moreover, that he
was unaware that he could do anything about it. It is his assertion
that he has only recently been able to raise the funds for an
attorney to investigate the matter further, which has led to the
present application.
RESPONDENTS’
CASE
[6]
The first respondent has indicated that he intends to abide the
decision
of the court. He has, nonetheless, filed an answering
affidavit to place the relevant facts before the court to assist in
the adjudication
of the matter. He notes that the matter had been on
the trial roll since 5 September 2011, originally with Mr Bence as
the applicant’s
attorney. The Legal Aid Board appointed Mr
Greeff on 24 April 2012. The latter continued as the applicant’s
attorney until
the commencement of trial on 14 March 2013. At no
stage did the applicant ever express dissatisfaction with Mr Greeff’s
appointment.
[7]
After the applicant’s conviction but prior to sentencing
proceedings,
Mr Greeff requested leave to withdraw because he was
exiting the legal profession. Mr Bence replaced him on 16 August 2013
and
addressed the first respondent on 25 September 2013 in relation
to sentence, which was handed down on the same date. At no stage,
avers the first respondent, did Mr Bence ever raise the issue of an
unfair trial or the denial of the applicant’s right to
be
represented by a legal practitioner of his own choice, whether during
the sentencing proceedings, application for leave to appeal,
or as
part of the applicant’s petition.
[8]
The first respondent admits that he refused to postpone the trial. He
denies, however, that he forced the applicant to continue with Mr
Greeff or interrupted him or refused to listen to him or placed
him
under extreme pressure. The extract from the transcription of the
record speaks for itself. He refused the postponement by
reason of
the circumstances at the time, including the long delay before
commencing trial, the congested court roll, and the fact
that the
defence was ready to proceed.
[9]
The second respondent also filed an answering affidavit. As a point
in limine
, the second respondent contends that the applicant
has failed to make out a case for condonation of his late filing of
the present
application. The applicant has failed to explain the
delay from the date upon which he was convicted and sentenced until
the date
of these proceedings, instituted on 18 November 2020. He has
failed to explain why Mr Bence never raised the alleged infringement
of the applicant’s rights during the application for leave to
appeal or as part of the petition. He has failed to explain
what
steps were taken to raise the necessary funds.
[10]
Importantly, asserts the second respondent, the applicant has also
failed to explain how
he was prejudiced by the alleged violation of
his rights. He has never stated that Mr Greeff conducted the trial
unprofessionally.
He has, moreover, not dealt with the potential
prejudice to the second respondent if the trial is ordered to
commence afresh, some
13 years after the offences were committed.
[11]
The second respondent, in relation to the merits, argues that the
extract from the transcription
of the record does not support the
applicant’s contentions.
ISSUES
TO BE DECIDED
[12]
At the outset, it is necessary to consider the second respondent’s
point
in limine
. This pertains, primarily, to whether
condonation for the late filing of the application ought to be
granted.
[13]
If there is no basis to the above, then the court will be required to
consider the merits
of the matter. This will entail a determination
of whether the first respondent denied the applicant his right to be
represented
by a legal practitioner of his own choice, and whether
this, in turn, infringed his constitutional right to a fair trial.
LEGAL
FRAMEWORK
[14]
The point
in limine
concerns the late filing of a review
application within the context of criminal proceedings in the
Magistrates’ Court. It
will be helpful to consider the
applicable principles before discussing their relevance in the
present matter.
Review
of decision
[15]
As a
starting point, the decision that forms the subject of this
application is one taken by the first respondent in his capacity
as a
judicial officer in the performance of his judicial functions. This
does not amount to administrative action. The procedures
and remedies
available under the Promotion of Administrative Justice Act 3 of 2000
(PAJA) are unavailable.
[1]
[16]
Instead, the application seems to fall within the ambit of
section
22(1)
of the
Superior Courts Act 10 of 2013
, which provides as
follows:
‘
(1)
The grounds upon which the proceedings of any Magistrates’
Court may be brought
under review before a court of a Division are–
(a)
…
(b)
interest in the cause, bias, malice or corruption on the part of the
presiding judicial officer;
(c)
gross irregularity in the proceedings; and
(d)
…’
[17]
There has
been some debate about the extent to which section 173 of the
Constitution enhances or extends the review powers of the
High
Court.
[2]
For immediate
purposes, the court is satisfied that either or both grounds
stipulated in terms of section 22(1)(b) and (c), above,
inform the
present application.
[18]
Regarding
the meaning of ‘gross irregularity’, counsel for the
first and second respondents referred to
Magistrate
Pangarker v Botha
,
[3]
where Mhlantla JA expressed approval for the definition given by Van
Loggerenberg:
‘
an
irregular act or omission by the presiding judicial officer…
in respect of the proceedings of so gross a nature that it
was
calculated to prejudice the aggrieved litigant, on proof of which the
court would set aside such proceedings unless it was
satisfied that
the litigant had in fact not suffered any prejudice.’
[4]
[19]
The above meaning will be considered further in due course. At this
stage, however, it
is necessary to restate the principles applicable
to the delay in the launching of the present application.
Delay
in institution of review proceedings
[20]
It is trite
that an applicant who fails to challenge without delay the decision
or proceedings of the Magistrates’ Court or
a tribunal or board
or official performing judicial, quasi-judicial, or administrative
functions, may well be barred from doing
so.
[5]
Hoexter and Penfold explain that there are two main reasons that
underpin the so-called ‘delay rule’: to curb potential
prejudice that may arise from the delay; and to promote the value of
finality and certainty in relation to public decision-making.
[6]
[21]
The Supreme
Court of Appeal dealt with a review application that fell under the
common law, not PAJA, in
Associated
Institutions Pension Fund
v Van
Zyl
,
[7]
where Brand JA held as follows:
‘…
Since
PAJA only came into operation on 30 November 2000 the limitation of
180 days in s 7(1) does not apply to these proceedings.
The validity
of the defence of unreasonable delay must therefore be considered
with reference to common-law principles. It is a
longstanding rule
that courts have the power, as part of their inherent jurisdiction to
regulate their own proceedings, to refuse
a review application if the
aggrieved party had been guilty of unreasonable delay in initiating
the proceedings. The effect is
that, in a sense, delay would
“validate” the invalid administrative action… The
raison d’être
of the rule is said to be twofold.
First, the failure to bring a review within a reasonable time may
cause prejudice to the respondent.
Secondly, there is a public
interest element in the finality of administrative decisions and the
exercise of administrative functions…
…
The scope and
content of the rule has been the subject of investigation in two
decisions of this Court. They are the
Wolgroeiers
case
[8]
and
Setsokosane
Busdiens (Edms) Bpk v Voorsitter, Nasionale Vervoerkommissie, en ‘n
Ander
1986 (2) SA 57
(A). As appears from these two cases and the numerous
decisions in which they have been followed, application of the rule
requires
consideration of two questions:
(a)
Was there an unreasonable delay?
(b)
If so, should the delay in all the circumstances be condoned?
(See
Wolgroeiers
at 39C-D.)
…
The
reasonableness or unreasonableness of a delay is entirely dependent
on the facts and circumstances of any particular case…
The
investigation into the reasonableness of the delay has nothing to do
with the Court’s discretion. It is an investigation
into the
facts of the matter in order to determine whether, in all the
circumstances of that case, the delay was reasonable. Though
this
question does imply a value judgment it is not to be equated with the
judicial discretion involved in the next question, if
it arises,
namely, whether a delay which has been found to be unreasonable,
should be condoned…’
[9]
[22]
The dual
enquiry, described above, has become an established practice for
matters of this nature.
[10]
As
to what is reasonable entails a factual enquiry upon which a value
judgment is made considering all the relevant circumstances,
including any explanation given for the delay.
[11]
The court exercises a judicial discretion in deciding whether an
unreasonable delay should be condoned. In doing so, the court
must
consider the relevant circumstances, including any explanation, but
also the two reasons for the ‘delay rule’
that were
mentioned earlier, viz. the prejudice caused to the other party, and
the public interest in achieving finality and certainty
regarding the
making of administrative decisions and the performance of
administrative functions.
[12]
[23]
The above principles must be applied to the matter at hand, as set
out in the paragraphs
that follow.
DISCUSSION
[24]
The discussion follows the dual enquiry described earlier and is
demarcated accordingly.
Whether
there was an unreasonable delay
[25]
It is not in dispute that the incident that gave rise to the present
application occurred
on 14 March 2013. This was the date upon which
the first respondent refused to postpone the matter, despite the
applicant’s
having expressed his wish to instruct Mr Bence. The
application was issued on 18 November 2020, more than
seven-and-a-half years
later. The only explanation given by the
applicant is that he had been unaware that he was able to do anything
about his situation
and had only recently been able to raise the
necessary funds to instruct an attorney to advise him.
[26]
The explanation given is sparse, to say the least. The applicant does
not say whether he
and Mr Greeff discussed the incident of 14 March
2013, either immediately afterwards or during the trial itself, prior
to the applicant’s
conviction and Mr Greeff’s withdrawal
on 17 July 2013. He also fails to indicate whether he and Mr Bence
discussed the incident
after the latter accepted the instruction and
appeared for the applicant from 16 August 2013 until sentence was
handed down on
25 September 2013. The incident seems never to have
been considered, whether during the trial, sentencing proceedings,
the application
for leave to appeal, or as part of the petition,
which was dismissed on 8 August 2014. It appears only to have emerged
as an issue
and received attention after the applicant instructed his
present attorney, Mr Daubermann. The applicant does not say exactly
when
this occurred.
[27]
Regarding the availability of funds, the applicant does not explain
his financial position
at all. He does not say that he had entirely
lacked funds or that he had been unable to obtain adequate assistance
from family
or friends or acquaintances or elsewhere. The court is
completely in the dark about the impact that his financial position
had
on his circumstances and precisely what happened between the date
upon which the applicant’s petition was dismissed and the
date
upon which the present application was launched.
[28]
Quite simply, the applicant has failed to offer any compelling
explanation for the delay
of seven-and-a-half years. It is difficult
for the court not to find that the delay was unreasonable.
Whether
the unreasonable delay should be condoned
[29]
Turning to the remainder of the enquiry, the court must exercise a
judicial discretion
in relation to the possible granting of
condonation. It must consider all the relevant circumstances, which
will inevitably entail
some investigation into the applicant’s
prospects of success.
Prospects
of success
[30]
The investigation begins with the incident itself. The extract from
the transcription of
the record reveals that, at the commencement of
proceedings on 14 March 2013, Mr Greeff informed the first respondent
that the
applicant wished to terminate his mandate. He added that the
applicant was ‘ongelukkig’ (unhappy) but was unable to
give a precise reason to Mr Greeff for why this was so. Mr Greeff
confirmed that the applicant had never had any problem with him
since
he first appeared for the applicant on 24 April 2012.
[31]
The first respondent then addressed the applicant in person, asking
him to clarify his
position. The applicant said that he was
‘ontevrede’ (dissatisfied) about one or two things. Upon
the first respondent’s
further enquiry, the applicant stated
that he was not actually dissatisfied with Mr Greeff and that he had
no problem with the
latter’s conducting the matter on his
behalf. He went on to state as follows:
‘
Maar
ek wil vir mnr Bence in die saak in betrokke, want hy was voorheen,
toe het ons ge-“consult according” die saak,
verstaan
meneer? Dit is die eintlike rede.’
[13]
[32]
On the face of it, the applicant wanted to involve Mr Bence in the
matter because he had
originally represented him. That was the
‘eintlike rede’ (actual reason). The applicant confirmed,
after additional
queries from the first respondent, that he had no
problem with Mr Greeff. The following exchange subsequently took
place:
‘
Ja,
goed, ek het niks gehoor wat vir my daarop dui dat ek hierdie saak
moet uitstel nie. Die saak sal voortgaan. Meneer, ek probeer
nie
snaaks wees nie, verstaan my mooi.
--- Ek verstaan meneer.
Die
saak kom al ‘n hele ruk. Die meneer is gereed. Jy het nie met
hom ‘n problem nie. Ons sal moet aangaan met die saak.
--- (Geen antwoord hoorbaar.)
Jy
is tevrede daarmee. --- Is in die haak, Edelagbare.’
[33]
To paraphrase, the first respondent stated that he had heard nothing
to indicate that he
should postpone the case. It had to go ahead. He
pointed out that the case had already been underway for some time. Mr
Greeff was
ready to proceed, and the applicant had no problem with
him. The first respondent asserted that the applicant was satisfied
with
this, to which the latter responded that it was ‘in die
haak’ (in order).
[34]
At the hearing of the present matter, the applicant’s attorney
argued that the first
respondent had not carried out a proper enquiry
into what the applicant had wanted. He had not explained that he
could have applied
for a postponement. He had, from a position of
authority, pressurized the applicant to continue with Mr Greeff.
[35]
Reference
was made to the decision in
S
v Moodie
,
[14]
where the erstwhile Appellate Division had dealt with a case where
the deputy-sheriff had been present while a jury had been engaged
in
deliberations. The applicable legislative provision at the time had
made it clear that a jury should have been in a private
place, by
themselves, to enjoy the fullest freedom of discussion. The presence
of the deputy-sheriff undermined the right of privacy.
It was an
irregularity of such a nature as to amount,
per
se
, to
a failure of justice.
[36]
The decision does not, however, appear to take the applicant’s
case much further.
It would be an exaggeration to contend that the
incident on 14 March 2013 gave rise to an irregularity that resulted
in the failure
of justice. Whereas the applicant expressed a
preference for the services of Mr Bence, he was not opposed to
continuing with Mr
Greeff. The record is clear in that regard. The
register and tone of the first respondent, moreover, could well be
described as
assertive but it can hardly be said that this was
inappropriate or that the first respondent pressurized the applicant
into proceeding
against his wishes. He afforded the applicant a
proper opportunity to explain the situation and to clarify any
reservations that
he may have held about going ahead with the trial.
[37]
The
applicant’s attorney also referred to
S
v Ramabele and others,
[15]
within the wider context of the applicant’s constitutional
right to a fair trial, including the right to choose and to be
represented by a legal practitioner.
[16]
The relevance of the decision to the present matter, however, is not
entirely apparent. The Constitutional Court merely held as
follows:
‘…
Generally,
when legal assistance is appointed for the accused by the state, they
ought to accept the legal representation. They
do not necessarily
have the right to select the legal representative appointed for them.
…
Furthermore,
there is also a duty placed upon judicial officers to afford the
accused an opportunity to obtain legal representation,
as well as a
duty to inform the accused that, if their legal representative
withdraws, they have a right to apply for a postponement
to enable
another legal representative to be appointed. This constitutional
guarantee requires that an accused be given a fair
and reasonable
opportunity to obtain legal representation. In order to consider what
constitutes a fair and reasonable opportunity,
there are a myriad of
factors to take into account. This should be considered on a
case-by-case basis, and failure to do so in
certain circumstances may
very well result in irregularities. However, the right to be
represented by a legal representative of
the accused’s own
choice does not include a right to have an ongoing trial postponed
for a lengthy period in order to allow
an accused an opportunity to
earn and save sufficient income to secure the services of a
particular legal representative of their
choice, since this may go
beyond the bounds of reasonableness.’
[17]
[38]
The above decision reiterates the principle that a court must allow
an accused a proper
opportunity to secure the services of a legal
practitioner. If the practitioner subsequently withdraws, then the
court must indicate
to the accused that he or she can apply for a
postponement to secure the services of another practitioner. Where
the state provides
a practitioner, e.g. an attorney appointed by the
Legal Aid Board, the accused should accept the services offered; he
or she does
not have an automatic right to a practitioner of his or
her own choice in such circumstances.
[39]
Counsel for
the first and second respondents, in this regard, drew the court’s
attention to the decision in
S
v Halgryn
,
[18]
where Harms JA stated:
‘…
Although
the right to choose a legal representative is a fundamental right and
one to be zealously protected by the courts, it is
not an absolute
right and is subject to reasonable limitations… It presupposes
that the accused can make the necessary financial
or other
arrangements for engaging the services of the chosen lawyer and,
furthermore, that the lawyer is readily available to
perform the
mandate, having due regard to the court’s organization and the
prompt despatch of the business of the court.
An accused cannot,
through the choice of any particular counsel, ignore all other
considerations… and the convenience of
counsel is not
overriding…
…
If
a legal representative is assigned by the State, the accused has
little choice. The accused cannot demand that the State assign
to him
counsel of his choice. That does not mean that he may object to a
particular representative, but the grounds upon which
it can take
place are severely limited. Conflict of interest is one and
incompetence may be one, but one has to act on the assumption
that a
duly admitted lawyer is competent. In this case the appellant did not
object to the appointment of Mr H and it does not
appear that he had
any grounds for doing so; on the contrary, after conviction he even
instructed Mr H to note an appeal on his
behalf. It follows that the
reliance on the right to a specific counsel is misplaced.’
[19]
[40]
The Supreme
Court of Appeal made it abundantly clear that the right to choose a
legal practitioner is subject to reasonable limitations.
It is not an
absolute right. An accused does not enjoy a great deal of leeway
where the state has provided a practitioner; the
circumstances under
which the accused can refuse such practitioner’s services are
very few. This approach was clearly endorsed
by the Constitutional
Court in
Ramabele
,
to which the applicant’s attorney referred.
[20]
[41]
The court’s
attention was also drawn to
S
v Shiburi
,
[21]
where Makgoka AJA held that the principle regarding legal
representation was context sensitive. In any given situation, the
enquiry
was always whether the accused’s right to a fair trial
had been infringed.
[22]
[42]
In the present matter, the applicant was not unrepresented. The Legal
Aid Board had appointed
an attorney, Mr Greeff, who was present at
the time of the incident in question. The applicant was, moreover,
not dissatisfied
with Mr Greeff and had no problem with his continued
involvement for the purposes of trial. At no stage has the applicant
ever
contended that Mr Greeff’s expertise was inadequate or
that his involvement resulted in the infringement of the applicant’s
right to a fair trial in any other manner.
[43]
A
distinction must be drawn between a right and a preference. The
applicant had a right to choose and to be represented by a legal
practitioner. If the right is to be given real effect, then it should
be understood as encompassing the services of a qualified
practitioner,
[23]
provided at a satisfactory level.
[24]
The applicant in the present matter may have had a greater liking for
a particular practitioner but that did not give rise to a
protectable
right. A litigant will, given the chance, select a practitioner with
superior expertise. But this is not always feasible.
Just because a
court refuses to postpone a long outstanding case to permit an
accused the opportunity to secure the services of
a practitioner for
whom he has a preference does not necessarily translate to an unfair
trial and the infringement of a constitutional
right. Any
determination in that regard remains context sensitive, as evident
from
Shiburi
.
[44]
Ultimately, there is nothing in the record to demonstrate that the
incident gave rise to
a gross irregularity, as defined in
Magistrate
Pangarker
. There is also nothing to suggest any interest in the
cause, bias, malice, or corruption, on the part of the first
respondent.
Other
circumstances
[45]
To decide whether to grant condonation for the unreasonable delay in
launching the present
application, the court must also consider the
two reasons for the ‘delay rule’ that were mentioned
earlier, viz. the
prejudice caused to the other party, and the public
interest in achieving finality and certainty regarding the making of
administrative
decisions and the performance of administrative
functions.
[46]
The
unreasonable delay in the present matter will undoubtedly have been
accompanied by the dimming of witnesses’ recollections
of the
events pertaining to the offences in question, which occurred on 3
April 2010, more than 13 years ago. The availability
of such
witnesses or the deponents to affidavits, as well as the availability
of documents and other evidence, will almost certainly
have become
compromised, too, over such a lengthy period.
[25]
The prejudice caused is obvious. Whereas the applicant’s
constitutional right to a fair trial is of fundamental importance,
the public interest is not served by reviewing and setting aside the
proceedings of the Magistrates’ Court, finalised more
than
seven-and-a-half years ago, unless there are good grounds for
disturbing the finality and certainty thereof. The applicant
has
simply failed to deal with these aspects.
RELIEF
AND ORDER
[47]
The court has already found that there was an unreasonable delay in
the institution of
these review proceedings. By reason of the
inadequacy of the explanation given by the applicant, the weak
prospects of success
in relation to the merits, the prejudice caused
to the first and second respondents by the delay, and the public
interest in achieving
finality and certainty, the court is not
persuaded that the delay ought to be condoned.
[48]
The respondents’ point
in limine
is successful. There is
no need to investigate the merits in any further detail and there is
no reason why the costs should not
follow the result.
[49]
In the circumstances, the following order is made:
(a)
the application is dismissed; and
(b)
the applicant is directed to pay the second respondent’s costs.
_________________________
JGA
LAING
JUDGE
OF THE HIGH COURT
I
agree.
__________________________
GNZ
MJALI
JUDGE
OF THE HIGH COURT
APPEARANCE
For
the applicant: Mr
Daubermann, instructed by Peter Daubermann Attorneys, Gqeberha.
For
the 1
st
and 2
nd
respondents:
Adv Schoeman SC, instructed by the Office of the State Attorney,
Gqeberha.
Date
of hearing:
11 May 2023.
Date
of delivery of judgment:
08 August 2023.
[1]
The
definition of ‘administrative action’ in terms of
section 1 of PAJA expressly excludes the judicial functions
of a
judicial officer of a court.
[2]
The provisions of section 173 indicate that the High Court has
inherent power to protect and regulate its own process, and to
develop the common law, taking into account the interests of
justice. The court in
S
v Taylor
2006
(1) SACR 51
held that the provisions in question extended the
court’s review powers whereas the court in
S
v Khumalo
2009 (1) SACR 503
(T) held that the provisions did not permit a
court to assume inherent jurisdiction to act contrary to an express
legislative
provision. See, too, the discussion in Etienne du Toit
(et al),
Du
Toit: Commentary on the Criminal Procedure Act
(Jutastat e-publications, RS 61, 2018) at ch30-p3.
[3]
2015 (1) SA 503.
[4]
At
paragraph [21]. See, too, DE van Loggerenberg,
Erasmus:
Superior Court Practice
(Jutastat e-publications, OS, 2023) at D-236.
[5]
In
Lion
Match Co Ltd v Paper Printing Wood & Allied Workers Union
2001 (4) SA 149
(SCA), Farlam JA confirmed, at paragraph [25], that
an applicant for review who fails to bring the application within a
reasonable
time may (unless the delay can be condoned) lose the
right to complain of the irregularity in regard to which the review
is brought.
See, too,
Wolgroeiers
Afslaers (Edms) Bpk v Munisipaliteit van Kaapstad
1978 (1) SA 13
(A) and
Mamabolo
v Rustenburg Regional Local Council
2001 (1) SA 135 (SCA).
[6]
Cora
Hoexter and Glenn Penfold,
Administrative
Law in South Africa
(Juta, 3ed, reprinted 2022) at 720.
[7]
2005
(2) SA 302.
[8]
See
n 5 above.
[9]
At
paragraphs [46] to [48].
[10]
See
the discussion in Van Loggerenberg, n 4 above (RS 21, 2023) at
D1-702.
[11]
Hoexter
and Penfold, n 6 above, at 721. See, too,
Setsokosane
Busdiens (Edms) Bpk v Voorsitter, Nasionale Vervoerkommissie, en ‘n
Ander
1986 (2) SA 57
(A) at 75C-E; and, more recently,
Madikizela-Mandela
v Executors, Estate Late Mandela and others
2018 (4) SA 86
(SCA), at paragraph [10].
[12]
Wolgroeiers
,
at 41;
Associated
Institutions Pension Fund
,
op cit, n 7 above;
Gqwetha
v Transkei Development Corporation Ltd
2006 (2) SA 603
(SCA), at 612E-613A; and
Madikizela-Mandela
,
op cit
,
n 11 above.
[13]
The
extract has been attached as annexure ‘LN 1’ to the
applicant’s founding affidavit. The portion in question
appears at p 7, lines 7-10 thereof.
[14]
1961
(4) SA 752 (A).
[15]
2020
(2) SACR 604 (CC).
[16]
Section
35(3)(f) of the Constitution of the Republic of South Africa, 1996.
[17]
At
paragraphs [47] and [48].
[18]
2002
(2) SACR 211 (SCA).
[19]
At
paragraphs [11] and [12].
[20]
See,
too, an earlier decision of the High Court in
S
v Swanepoel and others
2000 (1) SACR 384 (O).
[21]
2018
(2) SACR 485 (SCA).
[22]
At
paragraph [13].
[23]
See,
in this regard,
S
v Sibeko and others
2017 (2) SACR 457
(FB), where Hefer AJ held that an accused’s
right to a fair trial was infringed where he was represented by a
person without
the necessary qualifications to practise as a legal
practitioner.
[24]
In
Halgryn
(n 18 above), Harms JA observed, at paragraph [14], that ‘[t]he
constitutional right to counsel must be real and not illusory
and an
accused has, in principle, the right to a proper, effective or
competent defence.’
[25]
See, i
n
this regard,
Mandela
v Executors, Estate Late Nelson Rolihlahla Mandela and others
,
n 11 above, at paragraph [16].