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[2010] ZASCA 147
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Mogorosi v S (410/10) [2010] ZASCA 147 (29 November 2010)
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THE SUPREME COURT OF APPEAL OF SOUTH AFRICA
JUDGMENT
Case no: 410/10
EDWARD
MOGOROSI
..........................................................................
Appellant
and
THE
STATE
.......................................................................................
Respondent
____________________________________________________________
Neutral
citation:
Mogorosi v The State
(410/10)
[2010] ZASCA 147
(29 November 2010)
BENCH:
PONNAN, CACHALIA and LEACH JJA
HEARD: 12 NOVEMBER 2010
DELIVERED: 29 NOVEMBER 2010
SUMMARY:
Condonation for failure
to timeously note appeal – court below considering all of
the relevant facts – limited grounds on which
appeal court can interfere.
______________________________________________________________________
ORDER
______________________________________________________________________
On
appeal from
:
North West High Court (Mafikeng)
(Gumbo AJ, Hendricks J concurring sitting as court of appeal).
The appeal
is dismissed.
______________________________________________________________________
JUDGMENT
______________________________________________________________________
PONNAN JA (CACHALIA and LEACH JJA concurring):
[1] During August 2001 the appellant, Edward Mogorosi, was convicted
of on a charge of rape and sentenced to imprisonment for a
term of 15
years by the Regional Court, Lehurutshe.
[2] On 13 March 2009 the appellant approached the North West High
Court (Mafikeng) by way of an appeal to set aside both the conviction
and sentence on the basis that the record of his trial and the audio
tapes on which the proceedings were recorded could not be
located.
Affidavits deposed to by the prosecutor in the case and the presiding
magistrate made it plain that they: no longer had
any notes in their
possession; had no independent recollection of the matter; and, were
not in a position to reconstruct the trial
record.
[3] In terms of Rule 67(1) of the Magistrates' Courts Rules the
appellant ought to have lodged his notice of appeal within 14 days
of
having been sentenced. As the lodging of his appeal was late by some
seven years the appellant filed an application for condonation
with
the high court. Given that the appellant was seeking an indulgence he
had to show good cause for condonation to be granted.
In
S v
Mantsha
2009 (1) SACR 414
(SCA) para 5 Jafta JA stated that ‘good
(or sufficient) cause has two requirements. The first is that the
applicant must
furnish a satisfactory and acceptable explanation for
the delay. Secondly, he or she must show that he or she has
reasonable prospects
of success on the merits of the appeal’.
[4] In support of his application for condonation the appellant filed
an affidavit in which he stated:
'I have enquired on a number of occasions and later I
made an application to the Regional Court to be provided with a copy
of a
transcript of my record to prosecute an appeal (I attach as
annexure A, a copy of my letter dated 31 May 2007) and I was told
that
my case does not exist (I attach as annexure B, a copy of a
[letter] dated 11 October 2007 from Ms Bonolo Mmileng). I wrote to
the Department of Justice including the ministry to intervene in
assisting me with my records. I requested the Legal Aid Board to
assist me in this regard. I could not receive a positive response
from all those institutions.
. . .
I would further humbly submit to the Honourable Court,
that I have never instituted an application for leave to appeal
before Mr
Djaje [the presiding magistrate] or any other magistrate
because my records are lost. If my records were not lost I would have
accordingly prosecuted my appeal.'
The appellant studiously refrained from disclosing precisely when he
caused the numerous enquiries to be made, or more importantly,
when
he first applied to the regional court for a transcript of his
criminal proceedings. Neither Annexure A nor Annexure B was
annexed
to his affidavit. It bears noting that he was legally represented
when he deposed to that affidavit.
[5] The appellant's application was heard by the Mafikeng High Court
on 23 October 2009. On 29 October 2009 it was dismissed by
Gumbo AJ
(Hendricks J concurring) on the basis that the explanation given for
the delay was inadequate and unsatisfactory. The
matter was
accordingly struck from the roll.
[6] Regard being had to the fact that the appellant’s
application for condonation was dismissed in the court below, the
appellant has an automatic right of appeal to this court against such
dismissal without the need to seek leave from that court (
S v
Gopal
1993 (2) SACR 584
(A);
S
v Leon
1996 (1) SACR
671
(A)).
[7] In considering the application before it the court below had a
wide discretion, which, of course, had to be exercised judicially
on
a consideration of all of the facts. In essence, in exercising that
discretion a court must strive for fairness to both sides.
This court
has a restricted power of interference with the decision of a trial
court in relation to condonation. As it was put
by the Constitutional
Court:
'Ordinarily, the approach of an Appellate Court to the
exercise of such a discretion is that it will not set aside the
decision
of the lower court
"merely because the court of appeal would itself,
on the facts of the matter before the lower court, have come to a
different
conclusion; it may interfere only when it appears that the
lower court had not exercised its discretion judicially, or that it
had been influenced by wrong principles or a misdirection on the
facts, or that it had reached a decision which in the result could
not reasonably have been made by a court properly directing itself to
all the relevant facts and principles".'
(
Mabaso v Law
Society, Northern Province & another
[2004] ZACC 8
;
2005 (2) SA 117
(CC)
para 20.)
[8] A court considering an application for condonation must take into
account a range of considerations. Relevant considerations
include
the extent of non-compliance and the explanation given for it; the
prospects of success on the merits; the importance of
the 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. (See
S v Di Blasi
1996 (1) SACR
1
(A) at 3g.)
[9] Nothing was said by the appellant in his affidavit about the
merits of his conviction or his prospects of success in overturning
his conviction on appeal. He simply did not take the court into his
confidence. The submission before us was that since the record
has
been lost and cannot be reconstructed, the appellant, without more,
has good prospects of success. Reliance for this proposition
was
placed on
S v Chabedi
2005 (1) SACR 415
(SCA) para 5 where
this court said:
‘
On appeal, the record of the
proceedings in the trial court is of cardinal importance. After all,
that record forms the whole basis
of the rehearing by the Court of
appeal. If the record is inadequate for a proper consideration of the
appeal, it will, as a rule,
lead to the conviction and sentence being
set aside’
.
But as
Mantsha
clarified (para 15):
‘
The above statement must be
read in context. There can be no doubt that the setting aside of a
conviction and sentence, in a case
where the record is lost, is not
based on a finding made after consideration of the merits. That such
a result will follow, if
condonation is granted, cannot lay the
foundation for the submission that the appeal has prospects of
success on its merits. It
follows that the appellant's reliance on
Chabedi
was misplaced. It was
necessary, in the circumstances, that the appellant took the court a
quo into his confidence concerning the
evidence led in the case. That
the record was missing did not detract from this duty; that would
simply have rendered it more difficult
for the State to rebut his
say-so. But he made no effort in this regard.’
[10] Even allowing for the fact that the appellant acted in person at
some stages in the prosecution of his appeal that can hardly
compensate for the fundamental lacunae in his application. For as
Heher JA pointed out in
Uitenhage Transitional Local Council v
South African Revenue Service
2004 (1) SA 292
(SCA) ‘condonation
is not to be had merely for the asking; a full, detailed and accurate
account of the causes of the delay
and its effects must be furnished
so as to enable the Court to understand clearly the reasons and to
assess the responsibility’.
That did not happen in this case.
The appellant’s affidavit, notwithstanding that he was legally
represented when it was
drafted, failed to heed Heher JA’s
admonition. In my view it is opaque and singularly unhelpful in
explaining the long delay.
[11] The court below considered all of the facts. It concluded that
the delay of seven years in prosecuting the appeal was inordinately
long and inexcusable and thus could not be condoned. I can find no
fault in the approach adopted by court below or the conclusion
reached by it. No case has been made out for this court to substitute
its discretion for that of the court below. There is thus
no warrant
for us to do so. It follows that the appeal must fail and it is
accordingly dismissed.
_______________________
V M PONNAN
JUDGE OF APPEAL
APPEARANCES:
For
Appellant: N L Skibi
Instructed
by:
The
Director of Public Prosecutions
Grahamstown
The
Director of Public Prosecutions
Bloemfontein
For
Respondent: G S Maema
Instructed
by:
Legal
Aid Board
King
William's Town
Legal
Aid Board
Bloemfontein