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[2018] ZAGPJHC 655
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Sivhidzo v S (A304/2014) [2018] ZAGPJHC 655 (4 December 2018)
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REPUBLIC OF SOUTH AFRICA
IN THE HIGH COURT OF SOUTH AFRICA
GAUTENG LOCAL DIVISION,
JOHANNESBURG
CASE NO: A304/2014
DPP
REF NO: JPV 2007/100
In the matter
between:
SIVHIDZO, MULALO
UNITY APPELLANT
and
THE
STATE RESPONDENT
J U D G M E N T
MUDAU J:
[1]
The
appellant, Mrs Sivhidzo and two other co-accused appeared before N
Pandya AJ and assessors on 8 August 2008 charged with murder,
two
counts of robbery with aggravating circumstances, kidnapping as well
as malicious damage to property. On 7 December 2010, the
appellant,
then accused 3, was convicted of murder, kidnapping and malicious
damage to property and so were the other two co-accused.
In addition,
accused 2, Sello, was convicted of robbery with aggravating
circumstances. Consequently, the appellant was sentenced
to life
imprisonment in respect of the charge of murder, five years and three
years direct imprisonment for the kidnapping and
malicious damage to
property charges respectively. The effective sentence was therefore a
life term of imprisonment for the appellant
and her co accused.
[2]
The
appellant and her co-accused unsuccessfully applied for leave to
appeal against conviction and sentence on 14 March 2011.
Subsequently,
the appellant petitioned the Supreme Court of Appeal
(‘SCA’) for leave to appeal which was granted on 18
December 2012.
In this instance leave to appeal was granted to the
full court of this division
[1]
.
However, the appeal since then is yet to be prosecuted for reasons
that are dealt with below. The issue for determination is whether
the
appellant has to approach the Supreme Court of Appeal in order to
prosecute the appeal or make an application for condonation
to the
full court at the same time that the appeal is argued on merit.
[3]
Having
noted a litany of correspondence from the parties in relation to the
dispute regarding the jurisdiction of this court to
entertain the
appeal, and after proper consideration, on 5 September 2018 the Judge
President of this division, Mlambo JP, issued
a directive in terms of
s 14(1)
(a) of the
Superior Courts Act 10 of 2013
[2]
in which he set out the issue that requires determination by the full
court of this division in the following terms:
“
2.
After due consideration I have decided to enroll the matter before a
full court to consider whether the appeal has lapsed and
whether the
appellant has to approach the Supreme Court of Appeal again or
whether this court has jurisdiction to adjudicate the
appeal based on
the reasons averred on behalf of the appellant.
3.
For this leg of the hearing only heads of argument will suffice and
it is not necessary to have regard to the voluminous record.
4.
I therefore directed as follows:
4.1
The matter is set down for hearing before the Full court on 19
September 2018. The notice of set down to be issued by the Registrar
should specify that the matter is set down to determine the
jurisdiction dispute.”
[4]
The
Judge President also directed that the appellant’s heads of
argument be filed on or before 11 September 2018 and that
those of
the respondent be filed by no later than 14 September 2018. However,
after considering written submissions by counsel
for the appellant
regarding his unavailability on 19 September 2018, the Judge
President directed that the matter be set down for
hearing before the
Full Court on 12 November 2018. Heads of argument on behalf of the
appellant had to be served on or before 2
November 2018 and on behalf
of the respondent on or before 7 November 2018.
[5]
In
a written memorandum, counsel for the appellant, Adv Shapiro,
explained why the heads of argument were not served on 2 November
2018 as directed, but on 5 November 2018. In a nutshell, he had to
read the heads of argument of the respondent that was served
before
those of the appellant received on 31 October 2018. An attempt to
serve directly on the respondent’s counsel, Adv
Papachristofou
by 3:40 PM on 2 November 2018 failed as he could not locate her. This
is contrary to the usual practice, according
to the respondent, that
all services and notices to be served on the respondent must be
served on the clerks or administration
personnel members in their
appeal section and not on state advocates. The failure to serve heads
of argument on behalf of the appellant
on the required date was not
opposed by the respondent and was for that reason condoned.
[6]
Some
relevant facts regarding the adjudication of the dispute are as
follows. On 9 September 2014, the Registrar of this Court,
subsequent
to the appellant having been granted leave to appeal on petition,
served the relevant court record consisting of 50
volumes albeit
incomplete on the respondent. This is approximately 18 months after
the Supreme Court of Appeal granted leave to
appeal. The appellant
was at that stage still represented by legal aid. On 29 July 2016,
the appellant’s current attorneys
including counsel came on
record on which occasion “a notice of motion” with
attached heads of argument and a condonation
application was served
on the respondent. As the record was incomplete, a formal
reconstruction process of the record was embarked
upon on 16 October
2017 and completed on 27 October 2017. The complete reconstructed
record was subsequently served on the respondent
on 11 April 2018.
[7]
Rule
49A of the Uniform Rules of the High Court deals with criminal
appeals emanating from the lower courts or when a High Court
trial
judge grants leave to appeal to a full court comprising three judges
in terms of section 315(3) of the Criminal Procedure
Act No, 51 of
1977(Criminal Procedure Act). Rule 49A prescribes the procedure to be
followed with regard to relevant notices and
the lodging of the
appeal records .The full court serves as a court of appeal for the
decisions of a single judge of a provincial
or local division, if the
latter court grants leave to appeal or the Supreme Court of Appeal on
petition is of the opinion that
the questions of law and of fact
relating to the appeal do not deserve the attention of the Supreme
Court of Appeal. The decision
of the majority of the judges hearing
the application for leave to appeal in terms of
section 17(2)(b)
of
the
Superior Courts Act is
final unless the President of the Supreme
Court of Appeal acting in terms of
section 17(2)(f)
refers the matter
for reconsideration in exceptional circumstances.
[8]
The
statutory provision which deals with the preparation and lodging of
the record of proceedings in a criminal trial conducted
by a Judge of
the High Court in the event of an appeal is section 316 of the
Criminal Procedure Act which provides :
“
7(a)
If an application under subsection (1) for leave to appeal is granted
and the appeal is not under section 315 (3) to be heard
by the full
court of the High Court from which the appeal is made, the registrar
of the court granting such application shall cause
notice to be given
accordingly to the registrar of the Supreme Court of Appeal without
delay, and
shall
cause to be transmitted to the said registrar a certified copy of the
record, including copies of the evidence, whether oral
or
documentary, taken or admitted at the trial
,
and a statement of the grounds of appeal: Provided that, instead of
the whole record, with the consent of the accused and the
Director of
Public Prosecutions, copies (one of which must be certified) may be
transmitted of such parts of the record as may
be agreed upon by the
Director of Public Prosecutions and the accused to be sufficient, in
which event the judges of the Supreme
Court of Appeal may
nevertheless call for the production of the whole record.’ (Own
emphasis)
(b)
If an application under subsection (1) for leave to appeal is granted
and the appeal is under section 315 (3) to be heard by
the full court
of the High Court from which the appeal is made,
the
registrar shall without delay prepare a certified copy of the record
,
including copies of the evidence, whether oral or documentary, taken
or admitted at the trial, and a statement of the grounds
of appeal:
Provided that, instead of the whole record, with the consent of the
accused and the Director of Public Prosecutions,
copies (one of which
must be certified) may be prepared of such parts of the record as may
be agreed upon by the Director of Public
Prosecutions and the accused
to be sufficient, in which event the judges of the full court of the
High Court concerned may nevertheless
call for the production of the
whole record.’ In terms of section 316(7)(b) of the CPA the
duty is placed on the registrar
of the High Court and, not the
appellant, to ensure that the record is made available in this case,
to the full bench of the High
Court.”(my emphasis)
[9]
Similarly,
rule 49A(1)(b) of the Uniform Rules of Court provides:
“
In
the case of an appeal in terms of
section 315
(3) of the
Criminal
Procedure Act 51 of 1977
to the full court,
the
registrar shall
,
subject to the provisions of
section 316
(5) (b) of the said Act,
prepare three additional copies of the case record or parts thereof,
as the case may be, and shall furnish
the State with the number it
requires and, on payment of the prescribed fee, shall furnish the
appellant with the number he or
she requires: Provided that if the
registrar is of the opinion that the appellant is too poor to pay the
prescribed fee, such copies
may be furnished without payment of any
fee, in which case the registrar's decision shall be final’
(own emphasis).”
[10]
In
the heads of argument filed on behalf of the appellant, it is
contended that “the lateness should accordingly be condoned
as
there is no moral, factual or legal fault on the part of the
applicant”. Counsel for the appellant primarily deals with
the
merits of the condonation application which is beyond the directives
issued by the Judge President regarding this matter. In
argument
before us it was, however, contended on behalf of the appellant that
the issue of condonation can be dealt with when the
appeal is argued
on merit and that Rule 8 of the Supreme Court Appeal Rules finds no
application.
[11]
It
was contended by counsel on behalf of the respondent that, with the
appeal having lapsed in terms of Rule 8 of the Supreme Court
of
Appeal Rules, the appellant is obliged to lodge a substantive
application to reinstate the appeal and apply for condonation
for the
late filing of the court record, heads of argument and to explain the
failure to file the notice of appeal as required
in terms of the
applicable rule 12 of the Supreme Court of Appeals Rules. In
other words, counsel for the respondent argued
that the appellant
must approach the Supreme Court of Appeal because it is the court
that granted her leave to appeal to the full
court of this division.
The respondent contended that this court has no jurisdiction to
entertain the condonation application but
only the Supreme Court
Appeal.
[12]
Counsel
for the respondent also contended that the Uniform Rules of the High
Court do not deal with criminal appeals referred to
the full court by
the Supreme Court of Appeal. Instead, the Uniform Rules of the High
Court deals with appeals from the lower courts
or when leave to
appeal has been granted to the full court. In as much as this court
has inherent jurisdiction to regulate its
own proceedings, the
respondent argued, “such a power only becomes operational and
effective once jurisdiction has been established”
which it does
not have in this instance. In as much as the Supreme Court of Appeal
Rules are applicable, so it was argued; the
Uniform Rules of the High
Court also find application. The respondent contended, that a full
court can entertain a condonation
application and reinstatement of an
appeal the same day the appeal is scheduled to be heard, only in
circumstances where an application
for leave to appeal is granted by
a High Court trial judge to a full court in terms of
section 315(3)
of the
Criminal Procedure Act.
[13]
The
argument by the respondent’s counsel is unconvincing. In any
event, counsel conceded that there are no reported cases
in point, in
which the contentions made in support of the respondent have been
dealt with by our courts. I am not aware of any.
By way of analogy to
the contrary, in
Erasmus
v ABSA Bank Ltd and Others
[3]
,
the full court dealt with the issue of condonation of a lapsed appeal
due to noncompliance with uniform
rules 49(6)(a)
,
49
(7)(a) and
49
(13)(a). The appeal was pursuant to a petition filed with the
Supreme Court of Appeal which granted leave to the full court of the
Gauteng Division of the High Court. The full court entertained the
matter but dismissed the application for condonation. Importantly,
the matter was not referred back to the Supreme Court of Appeal to
consider the condonation application. Neither was the Supreme
Court
of Appeal Rules applied in considering the condonation application.
[14]
There
is no doubt that there has been a significant delay in the
prosecution of the appellant’s appeal in this matter. From
a
proper reading of the heads of argument and consideration of the
submissions made on behalf of the parties, the delay cannot
be laid
at the door of the appellant alone. In this case the voluminous
record of the trial proceedings in respect of certain parts,
was
reconstructed fairly recently. Ideally, an appeal should be heard
within a reasonable period of time after leave to appeal
has been
granted failing which an appellant could be prejudiced in
circumstances where the appeal is upheld.
[15]
Whether condonation should be granted for this and other reasons is
for the court seized with the condonation application to
grapple
with. In considering an application for condonation a court must take
into account a number of considerations. These include
the degree of
non-compliance, the explanation thereof, the importance of the case,
the prospects of success, the respondent’s
interests in the
finality of the matter and the administration of justice (
S
v Mantsha
[4]
;
Dengetenge
Holdings (Pty) Ltd v Southern Sphere Mining and Development Company
Ltd & others
[5]
;
Federated
Employers Fire & General Insurance Company Limited & another
v McKenzie
[6]
;
Uitenhage
Transitional Local Council v South African Revenue Service
[7]
;
Commissioner
for Inland Revenue v Burger
[8]
;
Miles
Plant Hire v Commissioner SARS
[9]
).
It is clear however, that from a proper reading of section 316
referred to above, the responsibility of ensuring that a complete
record is launched with a court of appeal lies with the registrar,
and not the appellant.
[16]
In
S
v Ramulifho
[10]
the Supreme Court of Appeal expressed its concern by the failure of
the various role players at various stages of the appeal process
as a
result of which the appellant spent 12 years for his appeal to be
heard. At para [17] of the judgment the Supreme Court of
Appeal put
it thus: ‘
the
judicial officer and every other official involved in the legal
process whereby a person is deprived of his freedom are obliged
to
ensure that the process obtains the full stamp of approval of the law
as quickly as possible, and the impression must never
be created that
our courts and judicial officials are in different to the freedom of
the individual’
.
[17]
The
Supreme Court of Appeal has often expressed its displeasure about the
unnecessary clogging of the Supreme Court of Appeal with
matters and
in particular where there are no considerations that call for the
attention of the Supreme Court of Appeal (S v Myaka
[11]
).
In terms of section 35 (3) (o) of the Constitution every accused
person has the right to have recourse by way of appeal or review
to a
higher court than the court of first instance. The right to appeal is
one of the most fundamental rights in our Bill of Rights.
In as much
as rule 49A is silent with regards to referral of appeal matters by
the Supreme Court of Appeal to a full court, in
my view, the hearing
of a condonation application by the full court enhances an accused’s
protected right to have recourse
by way of appeal.
[18]
What is clearer is that
section 316
of the
Criminal Procedure Act and
rule 49A of the
Uniform Rules of the High Court contain no equivalent of rule 8(3)
of the Supreme
Court of Appeal Rules which brings about the
lapse of an appeal on failure to lodge the record within the
prescribed period. In
my view, this matter is peculiar in that,
although leave to appeal was granted by the Supreme Court of Appeal,
the appeal is before
the full bench of the High Court. Rule 8 of the
Supreme Court of Appeal Rules would have been applicable if the
appeal was to be
heard by the Supreme Court of Appeal. Put simply,
the appeal would have been regarded as having lapsed in terms of rule
8(3) of
the Supreme Court of Appeal Rules if the appeal was pending
before the Supreme Court of Appeal (See
Sayed
and Others v S
[12]
;
Mathibela
v S
[13]
;
Mulaudzi
v Old Mutual Life Insurance Company (South Africa) Limited and
Others, National Director of Public Prosecutions and Another
v
Mulaudzi
[14]
).
[19]
Furthermore,
section 171 of the Constitution of the Republic of South Africa, 1996
(Constitution) provides all courts function in
terms of national
legislation, and their rules and procedures must be provided for in
terms of national legislation. In other words,
the rules prescribed
for the functioning and regulating of courts must be sourced from
national legislation. In addition, this
means that the Constitution
enables courts to make rules for their proper functioning and
regulation of process.
[20]
In
this regard,
section 30(1)
of the
Superior Courts Act provides
that
rules for the Supreme Court of Appeal, High Court and Magistrates’
Court are made in terms of the Rules Board for Courts
of Law Act 107
of 1985 (Rules Board for Courts of Law Act). Rules Board for Courts
of Law Act make provision for the establishment
of the Rules Board
for Courts of Law, which has the powers and duties conferred or
imposed upon it by the Rules Board for Courts
of Law Act. In terms of
section 6(2)(a) the Rules Board for Courts of Law has the power to
make different rules for the Supreme
Court of Appeal, the High Court
of South Africa and the Lower Courts and in respect of different
kinds of proceedings. The rules
are intended for the efficient and
expeditious administration of justice. Accordingly, each of these
courts has rules that regulate
their own proceedings. Each of these
courts is not obliged to apply the rules made for the purposes of
regulating the processes
of other courts. The contention by
counsel on behalf of the respondent that the Supreme Court of Appeal
Rules applies to
this matter therefore is without basis and is likely
to impede the proper and efficient administration of justice by
unnecessary
delays.
[21]
In
conclusion, it is my view that the full court is not obliged to apply
rule 8(3) of the Supreme Court of Appeal Rules. There is
no plausible
reason why there should be differences in approach in relation to a
full court having the powers to deal with condonation
in matters
referred to it for adjudication of an appeal by a single judge of the
High court, and those referred by the Supreme
Court of Appeal.
However, in dealing with the appellant’s delay to prosecute her
case, in my view, the full court must invoke
its discretion, taking
into consideration all the circumstances relating to the failure by
the appellant to prosecute the appeal
within a reasonable period, to
decide whether it condones the delay or not. In any event, there can
be no question of prejudice
against the respondent since the outcome
can always be challenged on further appeal to the Supreme Court of
Appeal. Importantly,
as indicated above the Supreme Court of Appeal
is
functus
officio
in as far as it has already made its decision in referring the appeal
to the full court.
[22]
Order
[22.1] The matter is referred to the
full court to consider whether the appeal has lapsed, and if not, to
adjudicate the appeal.
________________
T P MUDAU
[Judge of the High Court,
Gauteng Local Division,
Johannesburg]
I agree
___________________
M B MAHALELO
[Judge of the High Court,
Gauteng Local Division,
Johannesburg]
I agree
____________________
C VAN VEENENDAAL
[Acting Judge of the High Court,
Gauteng Local Division,
Johannesburg]
Date of Hearing: 12 November 2018
Date of Judgment: November 2018
APPEARANCES
For the Applicant: Adv Shapiro
Instructed by: S
Shapiro Attorneys
For the Respondent: Adv M
Papachristoforou
Instructed by: Director of Public
Prosecutions
Johannesburg
[1]
In
terms of section 315(5) (b) ‘full court’ means the court
of a provincial division, or the Witwatersrand Local Division
(GLD),
sitting as a court of appeal and constituted before three judges.
[2]
Section
14(1)(a)
of the
Superior Courts Act 10 of 2013
provides: “Save
as provided for in this Act or any other law, a court of a Division
must be constituted before a single
judge when sitting as a court of
first instance for the hearing of any civil matter, but the Judge
President or, in the absence
of both the Judge President and the
Deputy Judge President, the senior available judge, may at any time
direct that any matter
be heard by a court consisting of not more
than three judges, as he or she may determine”
[3]
(A982/13)
[2017] ZAGPPHC 890 (8 December 2017). This is a judgment by
Potterill J (with Hughes and Mphahlele JJ concurring).
[4]
2009
(1) SACR 414
(SCA) at 419 para 11.
[5]
[2013]
ZASCA 5
;
2013 2 All SA 251
(SCA) paras 11–13.
[6]
1969
(3) SA 360
(A) at 362F-G.
[7]
2004
(1) SA 292 (SCA).
[8]
1956
(4) SA 446
(A) at 449 G-H.
[9]
(20430/2014
[2015] ZASCA 98
(1 June 2015)).
[10]
2013
(1) SACR 388
(SCA) at para 17.
[11]
1993
(2) SACR 660
(A) at 662b.
[12]
2018
(1) SACR 185 (SCA).
[13]
(714/2017)
[2017] ZASCA 162
(27 November 2017).
[14]
2017
(6) SA 90
(SCA)).