Kunene v S (AR21/20) [2021] ZAKZPHC 36; 2022 (1) SACR 427 (KZP) (17 June 2021)

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[2021] ZAKZPHC 36
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Kunene v S (AR21/20) [2021] ZAKZPHC 36; 2022 (1) SACR 427 (KZP) (17 June 2021)

IN THE HIGH COURT
OF SOUTH AFRICA
KWAZULU-NATAL
DIVISION, PIETERMARITZBURG
Case No: AR21/20
In the matter
between:
SIHLE
JETRO KUNENE
APPELLANT
and
THE
STATE
RESPONDENT
REASONS
FOR JUDGMENT
Seegobin
J (Vahed J concurring):
[1]
After hearing argument in this matter on 30 April 2021, we issued an
order setting aside
the appellant’s conviction and sentence,
thereby allowing for his immediate release. We indicated at the time
that reasons for
the order will follow. These are the reasons.
[2]
The appellant was arraigned in the Vryheid Regional Court on four
counts of rape involving
a young complainant who was 11 years old at
the time. According to the charge sheet, the appellant was alleged to
have committed
these offences in the period from 1 January 2012 to 31
December 2012 at or near Bilanyoni in the Regional Division of
KwaZulu-Natal.
The appellant was 17 years old and a scholar at the
time. He was 18 years old when he was charged.
[3]
The appellant was legally represented throughout. Notwithstanding the
severity of the
charges, he was released on a warning. After
protracted proceedings spanning some seven years, the appellant was
eventually convicted
on 7 January 2019 of two counts of rape. He was
sentenced to 15 years’ imprisonment on each count. The sentences
were ordered to
run concurrently.
[4]
The appellant’s application for leave to appeal against conviction
and sentence was
refused by the court
a
quo
on 30 October 2019. Such leave was
granted by this court on petition on 10 February 2020.
[5]
A fundamental issue that arose on appeal was whether the appellant’s
fair trial rights
had been infringed, given the number of lengthy
postponements and delays that took place from the time of the
appellant’s first
appearance in 2013 until the matter was finalised
on 12 March 2019. It should be pointed out at the outset that the
issue relating
to the appellant’s fair trial rights was not
pertinently raised either by Ms Andrews on behalf of the appellant or
by Mr Mthembu
on behalf of the State. Counsel were nevertheless
agreed that given the manner in which the matter was dealt with in
the court
a quo
,
this was an issue that could not be ignored by this court.
[6]
To place matters in perspective the record reveals the following:
(a)
The J15 records that the appellant was
arrested on 14 September 2012 and made his first appearance on the
same day. It seems that
the appellant was released on warning on this
occasion. The record does not reveal how many appearances were made
since 14 September
2012, however on 29 April 2013 the magistrate
recorded on a document that the matter was remanded finally for trial
in the regional
court on 14 May 2013. Between that date and 23
October 2013, one has only the magistrate’s notes to go by.
(b)
On 14 May 2013 the notes indicated that the
‘attorney [is] reportedly unwell’ and the matter was adjourned to
31 May 2013. For
this appearance, the appellant was represented by Mr
Gumbi (from Legal Aid). On 31 May 2013 the notes suggest that the
appointment
of a defence attorney was awaited and the matter was
adjourned to 11 June 2013. On 11 June 2013 Mr Gumbi again represented
the appellant
and the matter was adjourned to 24 June 2013. The notes
suggest that the reason for this was ‘for consultation’ but do
not indicate
whether it was the State or the defence who required
time to consult.
(c)
On 24 June 2013 the matter was adjourned to
‘the Pre-Trial Court’ on 19 July 2013. Mr Gumbi represented the
appellant. From this
point onwards it must be assumed, unless
indicated otherwise, that Mr Gumbi appeared on each occasion. On 19
July 2013 the matter
was again adjourned to 23 September 2013. Again
the notes suggest that the reason was ‘for consultation’ but once
again did not
indicate whether it was the State or the defence who
required time to consult. On 23 September 2013 the matter was
adjourned to 9
December 2013. The notes suggest that the reason for
this was because there were no witnesses present.
(d)
On 9 December 2013 the matter was adjourned
to 22 April 2014. Again, the notes suggest that the reason for this
was because no witnesses
were present. On 22 April 2014 Mr Gumbi was
not present but the notes suggest that, by prior arrangement, the
matter was adjourned
to 10 July 2014. The notes also record that
‘attorney on back up roll’ but there was no indication as to what
precisely that
meant. On 10 July 2014 the courtroom in Vryheid was
occupied by ‘a magistrate visiting from Pietermaritzburg’ and the
matter
was adjourned to 30 October 2014.
(e)
On 30 October 2014 the courtroom at Vryheid
was again occupied by a visiting magistrate and the matter was
adjourned to 4 and 5 May
2015. The notes record that the matter was
accorded preference for those dates. However, on 4 May 2015 the
matter could not proceed,
as the notes reflected that ‘intermediary
got a medical appointment’ (sic). The matter was adjourned until
the following day,
5 May 2015. On 5 May 2015 the trial commenced
before the learned magistrate Ms Luvuno. This was two years and eight
months after
the appellant’s arrest and first appearance in court.
After the intermediary was sworn in and the complainant underwent the
prescribed
competency test, she commenced her evidence in chief. At
14h30 the matter was adjourned ‘due to the lateness of the hour’
to
8 July 2015.
(f)
On 8 July 2015 the matter did not proceed.
It seems that the complainant was not brought to court and, in
addition, that Mr Gumbi
was indisposed. The matter was adjourned to 3
August 2015. On 3 August 2015 Mr Gumbi was again ill. The matter was
adjourned to 19
August 2015, and on that date, the State witnesses
were absent and the matter was again adjourned to 7 October 2015.
(g)
On 7 October 2015 Mr Gumbi was ill again
and the matter was adjourned to 2 December 2015. On 2 December 2015
the matter was adjourned
to 2 June 2016. Again, the State witnesses
were not present. On 2 June 2016 the matter was adjourned again, this
time to allow ‘the
attorney to listen to the tapes’. On this
occasion Mr Nkosi appeared for the appellant. The matter was
adjourned to 20 June 2016.
(h)
On 20 June 2016 Mr Nkosi was absent without
prior arrangements being made. The matter was adjourned to 21 July
2016 ‘for attorney
to listen to CD’ (sic). On 21 July 2016 the
matter was adjourned to 28 July 2016 with the reason being that it
was ‘to arrange
[a] date with [the presiding officer] for [further
evidence]’. The notes reveal that the appellant was excused from
attendance
on 28 July 2016. On 28 July 2016 the appellant was
understandably absent but a warrant for his arrest was nevertheless
issued and
stayed. The matter was adjourned to 1 September 2016.
(i)
On 1 September 2016 the presiding
magistrate, the defence attorney and the appellant were absent. The
matter was adjourned to 15 September
2016. On 15 September 2016 Mr
Goqo indicated that he was now appearing for the appellant. He
indicated that he had listened to the
recordings of the proceedings
thus far and was ready to proceed. The presiding magistrate was
absent and the matter was adjourned
to 12 October 2016. Mr Goqo was
told that telephonic arrangements would be made with him if his
presence was required on 12 October
2016.
(j)
On 12 October 2016 Mr Goqo was absent. The
matter was adjourned to 25 October 2016. On 25 October 2016 the
presiding magistrate was
absent. The matter was adjourned to 10
January 2017. From this point on Mr Goqo represented the appellant
unless otherwise stated.
(k)
On 10 January 2017 the intermediary was not
available and the matter was adjourned to 27 February 2017. On 27
February 2017 the recording
system was found to be defective and the
matter was adjourned to 4 May 2017. On 4 May 2017 the CCTV and
recording systems were out
of order and the State witnesses were not
present. The matter was adjourned to 26 July 2017.
(l)
On 26 July 2017 the presiding magistrate
was ‘indisposed’. The matter was provisionally adjourned to 31
July 2017, and Mr Goqo
complained about the delays. On 31 July 2017
the matter was adjourned to 18 July 2017, with no reasons given. On
18 July 2017 a new
prosecutor was present, and certain exhibits were
handed in. A new intermediary was examined and sworn in. The
complainant was processed
through a further competency test and was
admonished to tell the truth. Her evidence in chief was led
de
novo
. While the complainant was still
‘in chief’, the proceedings were adjourned at 14h30 to 23 October
2017.
(m)
On 23 October 2017 the complainant and the
social worker (carer) were not present. Mr Goqo opposed a further
adjournment, citing inordinate
delays since 2012. The matter was
however adjourned to 27 November 2017. On 27 November 2017 Mr Goqo
was not present and no reason
was indicated for this. The matter was
adjourned to 23 January 2018. On 23 January 2018 further evidence in
chief from the complainant
was led, and cross-examined by Mr Goqo.
The court at 15h00 adjourned to 13 March 2018.
(n)
On 13 March 2018 the presiding magistrate
was again ‘indisposed’. The matter was adjourned to 12 April
2018. Arrangements were
made for the appellant not to be present on
12 April 2018 as a further date would be set. On 12 April 2018 the
appellant was not
present by prior arrangement and the matter was
adjourned to 24 May 2018. On 24 May 2018 the matter was adjourned to
26 June 2018
because the presiding magistrate had to attend a funeral
in the Eastern Cape.
(o)
On 26 June 2018 the evidence of two further
witnesses was taken and at 15h00 the matter was adjourned to 26 July
2018. On 26 July
2018 the matter was adjourned to 23 October 2018 for
evidence from the doctor to be led. On 23 October 2018 the doctor
testified,
and the State thereafter closed its case. The defence
argued for a discharge in terms of
s 174
of the
Criminal Procedure
Act 51 of 1977
. The matter was adjourned to 19 November 2018.
(p)
On 19 November 2018 the
s 174
application
was dismissed. The appellant testified and completed his evidence,
whereafter the matter was adjourned to 24 January
2019 for further
defence witnesses. On 24 January 2019 the appellant decided to close
his case, and argument followed immediately
thereafter. After a brief
adjournment, judgment was delivered on the same day. The appellant
was found guilty on two counts, and
the matter was adjourned to 12
March 2019 for sentence.
(q)
On 12 March 2019 the appellant was
sentenced to 15 years’ imprisonment in respect of each of the two
counts of rape, with the sentences
ordered to run concurrently. On 14
May 2019 the appellant applied for leave to appeal. The matter was
adjourned to 19 June 2019 for
transcripts to be obtained, and then on
that date again adjourned to 31 July 2019 for the same reason.
(r)
On 31 July 2019 the matter was again
adjourned to 13 August 2019 for transcripts to be obtained, and then
on 13 August 2019 again
adjourned to 25 September 2019 for the same
reason. On 25 September 2019 the matter was adjourned to 1 October
2019 for the hearing
of the application for leave to appeal.
(s)
On 1 October 2019 the new Legal Aid
attorney indicated that she had ‘too much on her plate’ and did
not have time to consult with
the appellant. The matter was then
adjourned to 17 October 2019. On 17 October 2019 the matter was
adjourned to 23 October 2019,
and on that date, further adjourned to
29 October 2019.
(t)
On 29 October 2019 the application for
leave to appeal against both conviction and sentence was refused. On
10 February 2020 Balton
and Van Zẏl JJ granted leave to appeal
against both conviction and sentence. On 22 June 2020 Madondo DJP
ordered the reconstruction
of the record, as certain evidence
appeared to be missing.
[7]
The appeal was set down for 30 April 2021. From the appellant’s
first appearance in
the court
a quo
,
his matter has been in court on at least 46 occasions with only eight
of these being occupied with actual trial proceedings (one
of the
eight being a repetition).
[8]
Section 35(3)
(d)
of the Constitution provides that:
‘
35(3)
Every accused person has a right to a fair trial, which includes the
right –
. . .
(d)
to have their trial begin and conclude without
unreasonable delay.’
[9]
The right to a speedy trial was considered by the Constitutional
Court in
Sanderson
v Attorney-General, Eastern Cape
[1]
where the accused complained about a breach of his constitutional
right to a public hearing within a reasonable time after having
been
charged. He relied in that regard on s 25(3)
(a)
of the interim Constitution. In
Van
Heerden v NDPP
[2]
the observations and findings of the Constitutional Court in
Sanderson
were summarized by Navsa ADP as follows:
‘
[47] The
court in
Sanderson
noted
that the right to a trial within a reasonable time is fundamental to
the fairness of a trial. It went on to consider how
a determination
is to be made of whether a particular lapse of time is reasonable. In
arriving at a conclusion the court warned that
regard should be had
to the imperfections in the administration of criminal justice
in our country, including those of law enforcement
and correctional
agencies. It acknowledged that they were all under severe stress.
[48] In
Sanderson
it
was stated that the amount of elapsed time was central to the
enquiry. The following part of the judgment is important:
“
(T)ime has
a pervasive significance that bears on all the factors and should not
be considered at the threshold or, subsequently,
in isolation.”
[49] Kriegler J,
in
Sanderson
, stated that the relevant considerations are
not only conditioned by time, but that time is conditioned by them.
He referred to the
factors generally relied upon by the state to
diminish the effect of elapsed time. Generally these are waiver of
time periods, time
requirements inherent in the case and systemic
reasons for the delay. As to how courts should approach the lapse of
time the following is
said in para 30:
“
The
courts will apply their experience of how the lapse of time
generally affects the liberty, security and trial-related
interests
that concern us. Of the three forms of prejudice, the
trial-related variety is possibly hardest to establish, and here as
in the
case of other forms of prejudice, trial courts will have to
draw sensible inferences from the evidence. By and large, it seems a
fair although tentative generalisation that the lapse of time
heightens the various kinds of prejudice that s 25(3)
(a)
seeks
to diminish.”
[50] The court
in
Sanderson
thought that the nature of the
prejudice suffered by an accused is the first of the most important
features bearing on the enquiry
presently under discussion. This,
said the court, would be considered on a continuum, from
incarceration through restrictive bail
conditions and trial prejudice
and mild forms of anxiety. In the balancing act the more serious the
prejudice, the shorter the period
within which the accused is to be
tried. The following appears in para 31:
“
Those
cases involving pre-trial incarceration, or serious occupational
disruption or social stigma, or the likelihood of prejudice
to
the accused's defence, or — in general — cases that are
already delayed or involve serious prejudice, should be expedited
by
the State. If it fails to do this it runs the risk of infringing s
25(3)
(a)
.”
[51] Kriegler J
stated that if an accused has been the primary agent of delay he
should not be able to rely on it in vindicating
his rights to a trial
within a reasonable time. An accused, so the court said, should not
be allowed to complain about periods of
time for which he has sought
a postponement or delayed the prosecution in ways that are less
formal.
[52] The second
factor, according to
Sanderson
, is the nature of the
case. In that regard the following appears:
“
Judges
must bring their own experiences to bear in determining whether a
delay seems over-lengthy. This is not simply a matter of
contrasting
intrinsically simple and complex cases. Certainly, a case requiring
the testimony of witnesses or experts, or requiring
the detailed
analysis of documents is likely to take longer than one which does
not. But the prosecution should also be aware
of these inherent
delays and factor them into the decision of when to charge a suspect.
If a person has been charged very early in
a complex case that has
been inadequately prepared, and there is no compelling reason for
this, a court should not allow the complexity
of the case to justify
an over-lengthy delay.”
[53] The third and
final factor set out in
Sanderson
is “so-called
systemic delay”. Under this heading the following was listed:
“
(R)esource
limitations that hamper the effectiveness of police investigation or
the prosecution of a case, and delay caused by court
congestion.”
The court also
issued a warning in the following terms:
“
Systemic
factors are probably more excusable than cases of individual
dereliction of duty. Nevertheless, there must come a time when
systemic causes can no longer be regarded as exculpatory.”'
(Footnotes omitted.)
[10]
In determining whether an accused person’s right to a speedy trial
has been infringed, a holistic approach
is required. Such an approach
in the context of delays was emphasized in
S
v Le Roux.
[3]
In this case a period of 13 years had elapsed since the commission of
the offence (public violence) and the eventual appeal hearing.
The
trial itself lasted six years. Whilst holding that there was no
explanation for the delay, the SCA nevertheless found that the
delay
by itself did not provide a basis for a referral back to the trial
court in the absence of a conclusion that the right to a
fair trial
had been infringed.
[11]
In
Bothma
v Els and others
[4]
the Constitutional Court (per Sachs J) emphasized that the nature of
the offence must also be considered, together with the other
factors
referred to above. The court held that any analysis which only takes
into consideration factors like the duration of the
delay, the reason
for the delay and the potential trial prejudice but not the nature of
the offence (especially when vulnerable persons
like young children
have been the victims of sexual offences) will be too narrow.
[12]
In light of the factors mentioned above, it becomes necessary in the
present matter to have regard to
the lapse of time, the causes
thereof as well as the nature of the offence in question in order to
determine what real prejudice
was suffered by the appellant herein.
As stated earlier, a period of some seven years had passed from the
time when the appellant
was first charged until the trial was
finalized. The detailed history set out above shows that the delays
in the matter were occasioned
by what might rightly be termed as
systemic delays, and that periods of time were lost mainly because of
the non-availability of
the presiding magistrate and/or the absence
of witnesses. On the occasions on which the appellant himself was
absent, it was because
arrangements had already been made for the
trial to be adjourned due to the reasons mentioned above. On every
other occasion the
appellant was present only to be informed that the
matter could not proceed. The prejudice to the appellant in these
circumstances
is self-evident.
[13]
A most concerning feature of the delays herein is that a period of
two years and eight months had elapsed
from the time of the
appellant’s arrest and first appearance until the trial commenced
on 5 May 2015. After commencing her evidence
in chief, the matter was
adjourned to 8 July 2015. Thereafter a period of two and a half years
passed from the time that the young
complainant commenced her
evidence until the matter resumed again on 18 July 2017. What is
concerning is that the new prosecutor
(Ms Symington), in the absence
of any formal application before the learned magistrate or reasons
therefore, commenced to lead the
evidence of the complainant
de
novo
.
[14]
The consequence of this was that the complainant’s evidence was now
at variance with what she had testified
to on the first occasion. It
suffices to mention just two crucial aspects in this regard. The
first is that whereas on the first
occasion she was adamant that the
appellant had raped her on three consecutive occasions, when she
re-testified she maintained that
it only happened on two separate
occasions, and she had denied that she had initially testified about
three rapes. The second aspect
relates to the type of pyjamas she
wore: whereas on the first occasion she testified to wearing a top,
pants and panty, on the second
occasion she maintained that she wore
a night dress without a panty.
[15]
On the two occasions when she testified, the complainant maintained
that she had identified the appellant
by his voice only. No evidence
was led to test the reliability of the voice identification. The room
in which these incidents were
alleged to have taken place was dark
and she never saw the appellant at all. She further testified that
the offences were committed
on a small bed which was also occupied by
two other children. How probable it was for these incidents to have
taken place in these
circumstances was never explored in the
evidence.
[16]
It is not clear from the record why the initial prosecutor was unable
to continue with the trial after
having led the complainant’s
evidence in chief on 5 May 2015. It is also not clear why Ms
Symington (the new prosecutor) would
elect to lead the complainant’s
evidence
de novo
knowing full well that the complainant had already testified on a
previous occasion. When Ms Symington embarked on this course of
conduct, she did so without sight of the notes (which were available)
of either the magistrate or the defence attorney involved.
Nor did
she consider it necessary to listen to the previous recording to
satisfy herself about the evidence already given by the
complainant.
Quite strangely, Ms Symington informed the court that any
discrepancies in the complainant’s evidence could be clarified
in
cross-examination. What Ms Symington failed to appreciate is that any
material contradictions found to exist in the complainant’s
evidence would render such evidence unreliable. Her failure to
properly precognize and prepare the complainant to testify gave rise
to material contradictions of the nature set out above.
[17]
Bearing in mind that the charges in this matter were of a sexual
nature involving both a young girl as
well as a young offender, I
consider that there was an overall duty, not only on the court but
also on the prosecution, to ensure
that the trial commenced and ended
within the shortest time possible. The failure in this regard must be
placed squarely at the doors
of the learned magistrate and the
prosecution. The result of course was the severe prejudice caused not
only to the appellant but
to the young complainant as well.
[18]
By all accounts this was not a complex matter that required a wealth
of evidence to be led. Ultimately
only four witnesses were called by
the State and it was only the appellant who testified in his defence.
In my view the matter could
have been finalized within a week or two.
That it took seven years is simply astounding.
[19]
From all the above it is quite clear that neither the court nor the
prosecution paid any heed to the
appellant’s rights to a trial
within a reasonable time. As mentioned already, it was the
magistrate’s and the prosecutor’s
tardiness and lack of interest
that resulted in the huge delays herein. In matters such as this it
is not only the interests of an
accused person that should be
considered but also those of the young complainant and the public at
large. Given the fact that rape
and other sexual offences have become
endemic in this country there can be no confidence in a justice
system that makes a mockery
of the rights not only of accused persons
such as the appellant herein, but also of victims of crime. The
conduct of the learned
magistrate and the prosecutor/s involved
requires censure of the strongest kind.
[20]
Having regard to the applicable factors on which
Sanderson
is instructive, and considering the totality of the circumstances set
out above, in my view, the passage of time in this case, relative
to
its facts, was unreasonable in the extreme. It was for these reasons
that we felt compelled to set aside the convictions and sentence,
thereby allowing for the appellant’s immediate release on 30 April
2021.
____________________
Seegobin J
____________________
Vahed J
APPEARANCES
:
COUNSEL
FOR THE APPELLANT:
P Andrews (Instructed by Legal Aid, South Africa)
COUNSEL
FOR THE RESPONDENT:
M E Mthembu (Instructed by Director of Public Prosecutions,
Pietermaritzburg)
DATE
OF HEARING:
30 April 2021
DATE OF REASONS FOR
ORDER:
17 June 2021
[1]
Sanderson
v Attorney-General, Eastern Cape
[1997]
ZACC 18; 1998 (1) SACR 227 (CC); 1998 (2) SA 38; 1997 (12) BCLR
1675.
[2]
Van
Heerden and another v National Director of Public Prosecutions and
others
2017
(2) SACR 696
(SCA) paras 57-53.
[3]
S
v Le Roux and others
2010
(2) SACR 11
(SCA).
[4]
Bothma
v Els and others
2010
(1) SACR 184
(CC).