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[2011] ZASCA 88
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Staggie v S (38/10) [2011] ZASCA 88; 2012 (2) SACR 311 (SCA) (27 May 2011)
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THE
SUPREME COURT OF APPEAL
OF
SOUTH AFRICA
JUDGMENT
Case No: 38/10
In
the matter between:
RASHIED
STAGGIE
...............................................................................
First
Appellant
RANDALL
BOSCH
............................................................................
Second
Appellant
and
THE
STATE
.................................................................................................
Respondent
Neutral
citation:
Staggie v The State
(38/10)
[2011] ZASCA 88
(27
May 2011)
Coram:
Harms DP, Malan and Theron JJA
Heard:
24 May 2011
Delivered:
27 May 2011
Summary:
Criminal appeal ─ failure to prosecute ─ effect ─
failure of criminal process – special entries.
___________________________________________________________________
ORDER
___________________________________________________________________
On appeal from:
Western Cape High Court (Cape
Town) (Sarkin AJ sitting as court of first instance):
The appeal is struck from the roll.
___________________________________________________________________
JUDGMENT
___________________________________________________________________
HARMS
DP (MALAN and THERON JJA concurring)
[1] The appellant, Mr R Staggie, seeks to appeal his
conviction on 28 January 2003 by Sarkin AJ (sitting with assessors)
in the
High Court, Cape Town. The case is unfortunately a sad
indictment of the criminal process in this country. It is not an
instance
where the accused’s rights have been affected but one
where the rights of the victim and the public were ignored or
disregarded
in an appalling manner.
[2] Staggie and one Randall Bosch were found guilty on a
count of kidnapping and of rape. The events took place during August
2001.
The two accused were involved in gang related activities and
the complainant was suspected of being a police informant. For her
punishment she was kidnapped and gang raped. The other rapists were
not identified or caught.
[3] The complainant was a single witness to the event.
There was some corroboration evidence from other witnesses. She and
some
of them were in a witness protection programme and the state
sought leave for her (and others) to give evidence in camera and by
means of a video link. This gave rise to a number of interlocutory
applications, and lots of evidence and argument. After 24 court
days
(this does not mean that the court used those 24 days) and 1500 pages
of record, the state closed its case.
[4] Staggie, whose defence was an alibi, chose not to
testify but called witnesses in support of his alibi. Bosch, though,
testified
in his own defence. And the case carried on relentlessly –
for another 20 days. Even the court called a number of witnesses
–
most of the evidence proved to be of no assistance. In the end we
were faced with a record of more than 4000 pages.
[5] Sarkin AJ delivered a judgment of some 90 pages in
which he found the two accused guilty as charged. Staggie was also
found
guilty of the unlawful possession of a firearm but nothing
turns on this. They were eventually sentenced to an effective 15
years’
imprisonment.
[6] On 28 February 2003, Sarkin AJ granted the
appellants leave to appeal to this court. The first ground related to
the veracity
of the complainant’s evidence and the second
concerned the judgment the court had given during the course of the
hearing
(on 12 November 2002) when it dealt with the interpretation
of sections 153 (which deals with the court’s discretion to
hold
an in camera hearing in the case of an indecent offence) and 158
(which deals with the use of video evidence) of the
Criminal
Procedure Act 55 of 1977
. Why he thought that the case deserved the
attention of this court is unclear.
[7] What astounds is that the acting judge, in the light
of the conviction and sentence, found it appropriate to release the
appellants
on bail pending the appeal: Staggie at R10 000 and
Bosch at R1000. And this is where the wheels that were left fell off
the
wagon. The appellants did not prosecute the appeal with any
intention to bring it to a conclusion. An incomplete record was filed
some 18 months after grant of leave, but it was rejected as being
incomplete. The present record was filed on 21 January 2010 –
just short of seven years late. Bosch in the meantime roamed the
streets as a free man until he was shot dead during February or
March
2010. Staggie after a while, was found guilty of another offence and
is apparently still in prison. He is said to have some
problems with
obtaining parole because of the sentence imposed in this case.
[8] We were informed from the bar that the state sought
to set the bail conditions aside in the high court and also sought
warrants
of arrest in the magistrates’ courts – all to no
avail. Why the state did not approach this court, where the matter
was supposed to be, for an order that the appeal had lapsed was not
explained.
[9] This brings me to the present proceedings. Staggie’s
counsel wrote a letter to the registrar of this court on 30 April
2010 in which he mentioned that Staggie was in prison because of
another conviction; he would not have been had it not been for
this
case; he ought to be entitled to a preferential date; and that
counsel was briefed by the Legal Aid Board only on 3 March
2010. He
had also not yet been told by the Board that he would be paid for
reading 4000 pages but said that the appeal would nevertheless
proceed. (Why counsel had to read 4000 pages in the light of his
personal involvement in the case and the nature of the appeal
is
another matter.)
[10] The state filed its heads of argument on 27 May
2010. At the outset it raised the question whether an explanation had
been
proffered by Staggie for the delay in prosecuting the appeal. In
addition, the submission was made that the delay was in itself
evidence of an intention to abandon the appeal.
[11] The next inexcusable delay took place in the office
of the registrar of this court. In spite of a directive form the
judiciary
that proper track be kept of cases ready for hearing, the
registry apparently misfiled the case because it was only brought to
the attention of the judge responsible for the roll during March 2011
instead of during May 2010. It is not the only case that has
been
misfiled in recent times.
[12] Counsel for the appellant had a year’s time
to respond to the state’s mentioned submissions but he did
nothing.
No application for condonation was filed. We have no
explanation from Staggie. We have, in fact, nothing that can be used
in his
favour.
[13] Apart from this, counsel did not file heads of
argument although he did file a document that purports to be such.
The document
states that the argument was contained in the grounds of
appeal (some 140 pages). That document does not contain any argument.
It simply lists alleged errors by the court without any reference to
the record or explanation. The only references to the record
deal
with the peripheral circumstances relating to a witness protection
programme without any indication of how that impacts on
the
correctness or otherwise of the judgment. The sum total of the
argument in the ‘heads’ consists of three sentences:
the
state did not prove the case beyond reasonable doubt; the appellant
did not have a fair trial; and that the conviction ought
to be set
aside. That is not even good enough for a notice of appeal from a
magistrates’ court.
[14] In fairness to counsel, he
blamed me for the form of his heads because I had written an article
on heads of argument in
The
Advocate
which, he
said, he dutifully followed. In self-defence, he is the first lawyer
to interpret the article in this manner. Other lawyers
keep filing
exhaustive and exhausting heads in spite of the article (assuming
that others have read it). And one is, I imagine,
entitled to ponder
why counsel brought the article along to court unless he expected
that the sufficiency of the heads would become
an issue during the
hearing.
[15] The unfair trial argument appears to be based on
what counsel called special entries in terms of
s 317
of the Act. The
appellant did indeed file an application for special entries on 27
February 2003 and they were, we are told, fully
argued. We are also
told from the bar that the acting judge intimated that he would make
the entries. However, counsel could not
show us where on the record
the entries were made. Confronted with this, counsel’s response
was an accused is helpless if
a judge fails to make the entries
requested. The answer is that in those circumstances the accused is
entitled to approach this
court within 21 days in terms of
s 31
7(5).
No such approach was made. In any event, to appeal on a special entry
an accused has to file a notice of appeal in terms of
s 318(1)
within
21 days because the appeal is an automatic one and does not require
leave – something still not done after more than
eight years.
[16] Special entries are an
anachronism dating from the time when the right to appeal in a
criminal case was severely restricted.
In spite of what was said in a
time frame not far removed from the extension of the right to appeal
by Schreiner ACJ in
R
v Nzimande & others
1957
(3) SA 772
(A) at 773H-774D, the only purpose it serves today is to
record irregularities that affect the trial that do not appear from
the
record. Examples given by Hiemstra
1
relate to the removal of an assessor
by the presiding judge for reasons that were not debated in open
court (
S v Malindi &
others
1990 (1) SA
962
(A)); the failure of the prosecutor to disclose discrepancies in
a witness’s statement (
S
v Xaba
1983 (3) SA
717
(A)); and where the was a breach of the attorney-client
relationship and the evidence so obtained was used against the
accused
(
S v
Mushimba
1977 (2)
SA 829
(A). Not one of the entries on which Staggie sought to rely
qualifies because they all concerned an attack on rulings made by the
court during the proceedings.
[17] As mentioned, the court below
granted leave to appeal against its decision on the interpretation
and application of
sections 153
and
158
of the Act.
Section 153(3)
gives a court a discretion in criminal proceedings relating to a
charge that the accused committed an indecent act towards another
to
hold the proceedings behind closed doors. The court below, in a fully
reasoned judgment, exercised its discretion in favour
of in camera
proceedings. Such discretionary judgment may be impugned on appeal on
very limited grounds. Counsel did not refer
us to a single passage in
the judgment, reported as
S
v Staggie & another
2003
(1) SACR 232
(C), which can be assailed on this basis.
[18] This reported judgment also
dealt with the interpretation of
s 158(3)
of the Act and its
interpretation was subsequently accepted as correct in
S
v Domingo
2005 (1)
SACR 193
(C).
2
Both judgments overruled
S
v F
1999 SACR 571
(C). When asked, counsel was unable to submit that the court below
had erred. What
S v
F
held was that if
one has a list ‘a, b, c, or d’ it means ‘a and b
and c or d’. That is linguistically and
contextually
unsustainable. In context, a court may order video evidence if the
facilities are available and any one of the five
requirements spelt
out in subsec (3) are present. And should a court err,
s 322(1)
of
the Act would apply.
[19] Counsel also took the court
below to task because it had reference to ‘academic’
works relating to the lack of
police training in relation to rape
investigations and the post-traumatic rape syndrome without expert
evidence confirming those
views. Although the judgment smacked of
academic learning there is not one reference that does not conform to
that which is generally
known and accepted. In addition, to succeed
the appellant had to show that these references led to a miscarriage
of justice. See
R v
Harris
1965 (2) SA
340
(A) read with the proviso to
s 322(1)
of the Act. No attempt was
made to do so.
[20] That leaves, in the words of the acting judge, ‘the
question of the complainant’s testimony’ on which, he
said ‘we have spent a lot of time dealing with that.’ It
is correct that the court below did spend much time on the
matter. We
are bound by its factual findings unless it is shown that they were
wrong. Counsel was invited to point to any finding
in the judgment
that was unsustainable but apart from submitting in most general
terms that the court had erred did not accept
the invitation.
[21] To conclude this sad tale, Staggie’s appeal
is not properly before us and Bosch’s lapsed in any event
because of
his death. And even if we accept the lackadaisical
submissions made in court as an application for condonation and
reinstatement
of the appeal, they did not satisfy us that the delay
was excusable or that Staggie has reasonable prospects of success.
[22] Something has to be said about the state’s
conduct. The Directors of Public Prosecutions and even the Ministry
of Justice
have on an administrative level been requested by this
court over many years to keep proper track of the process of criminal
appeals
– to no or little avail. No proper track is kept of
whether persons convicted apply for leave within the prescribed
period;
whether appeals are prosecuted in time by the filing of
records or of heads of argument; and whether appeals are enrolled in
due
course and do not lie waiting for doomsday somewhere in the
offices of registrars, whether in this court or the high courts.
[23] Then there is the question of due compliance by the
state of its obligation to comply with the practice directives of
this
court. The state’s written argument was as could be
expected in the light of the appellant’s non-argument quite
brief.
The only references to the record were to the judgment of the
court below. In spite of this the state said that we had to read all
4000 pages of the record. This is unacceptable. The state has a duty
towards the court to ease its workload and not to bog it down.
The appeal is accordingly struck from the roll.
____________________
L T C Harms
Deputy President
APPEARANCES
APPELLANTS: J Mihálik
Instructed by Justice Centre, Cape Town
RESPONDENT: H Booysen
Instructed by The Director of Public Prosecution, Cape
Town
The Director of Public Prosecution, Bloemfontein
1
Suid-Afrikaanse
Strafproses
(Kriegler and Kruger 6 ed)
p 888.
2
Section
158:
‘
(2) (a) A court may, subject
to
section 153
, on its own initiative or on application by the
public prosecutor, order that a witness or an accused, if the
witness or accused
consents thereto, may give evidence by means of
closed circuit television or similar electronic media.
(b) A court may make a similar order on the application
of an accused or a witness.
(3) A court may make an order contemplated in
subsection (2) only if facilities therefore are readily available or
obtainable
and if it appears to the court that to do so would ─
(a) prevent unreasonable delay;
(b) save costs;
(c) be convenient;
(d) be in the interest of the security of the State or
of public safety or in the interest of justice or the public; or
(e) prevent the likelihood that prejudice or harm might
result to any person if he or she testifies or is present at such
proceedings.’