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[2008] ZASCA 121
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S v Mantsha (432/07) [2008] ZASCA 121; 2009 (1) SACR 414 (SCA) 2008 ; [2009] 1 All SA 356 (SCA) (26 September 2008)
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THE SUPREME COURT
OF APPEAL OF SOUTH AFRICA
Case No: 432/07
In the matter
between:
KHOLISILE MANTSHA
APPELLANT
v
THE STATE
RESPONDENT
Neutral
citation:
Mantsha
v The State
(432/2007)
[2008]
ZASCA 121
(26 September 2008)
Coram: Heher JA,
Jafta JA et Maya JA
Heard: 15 September
2008
Delivered: 26
September 2008
Summary: Appeal
against refusal of condonation for failing to lodge an appeal
timeously – requirements therefor and grounds
on which the
appeal court will interfere.
____________________________________________________________
ORDER
____________________________________________________________
On appeal from:
Cape
High Court (Thring J and Irish AJ sitting as the appeal court)
(1) The appeal is
dismissed.
___________________________________________________________
JUDGMENT
___________________________________________________________
JAFTA JA (HEHER
JA and MAYA JA concurring)
[1] In June 1998 the
appellant was convicted of various offences in the regional court and
on 7 August he was sentenced to
an effective 15 years’
imprisonment. Immediately after sentencing he indicated to the
presiding magistrate that he wished
to lodge an appeal. He was
advised to approach the Legal Aid Board for legal assistance. On 29
August 1998 an attorney –
Mr Lloyd Fortuin – was
appointed to represent him. But Fortuin took no steps towards the
prosecution of the appeal.
[2] On 10 September
2002 the appellant – acting in person – sent a notice of
appeal to the clerk of the court. As the
lodging of his appeal was
late by more than four years, the appellant also filed an
‘application for condonation’.
Meanwhile the record of
his trial and the tapes on which the proceedings were recorded had
been lost in the regional court at an
unknown
date. The presiding magistrate’s notes also could not be
traced. As a result the record could not be reconstructed.
[3] The appellant’s
application for condonation was heard by the Cape High Court in 2005.
Thring J (Irish AJ concurring) dismissed
it on the basis that the
explanation given for the delay was unsatisfactory and inadequate.
The matter was struck off the roll.
The present appeal is against
that order and as it was not necessary the appellant did not seek
leave of the court below
1
.
[4] Although the
appellant was represented by an attorney at the hearing of the
condonation application in the court below, the
document setting out
the explanation for the delay was drafted by the appellant himself.
His attorney was content to argue the
matter on the basis of papers
drawn by the appellant without supplementing or amending them.
[5] In terms of Rule
67 (1) of the Magistrate’s Court rules as it then
read,
the appellant ought to have lodged his notice of appeal within 14
days from the date on which he was sentenced
2
.
As the appellant was seeking an indulgence, he was required to show
good cause for condonation to be granted. 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.
[6] In this matter
the appellant’s application did not deal with prospects of
success on the merits of his conviction and
sentence. As regards the
delay he furnished the following explanation:
‘
On the 10
August 1998 I applied for Legal Aid in Athlone Justice Centre. On the
29 August 1998 Mr Lloyd Fortuin was
appointed as my
legal representative. He consulted with me as soon as he was
appointed to inform me about his duty. He told me
that he was
appointed to represent me on the appeal itself, he is also
investigating the chances of appealing the case. Mr Fortuin
came to
me on the 17 January 2002 that he will be closing the file
of my appeal temporally because the legal aid failed
to honour its
agreement of paying for his services on this matter. He wishes that I
will persue the legal aid personally to honour
its promises. He also
told me that yes he wishes to do the appeal after developing a
relationship between us, as we have been corresponding
for more than
3 years. But my duty was to persue legal aid.
He also told me
about the recommendations. He was to make to the Legal Aid Board. He
never mentioned to me that he was only appointed
only to investigate
the chances of the appeal. I was led to believe I had a lawyer for my
appeal. I came to understand that when
the clerk of the court in
Wynberg court wrote me a letter telling me that I have to note an
appeal and condonation. The clerk of
the court Miss S Francke told me
that Mr Fortuin was only appointed to investigate that letter came to
me on the 9 October
2002.
Eversince 1998 I
have been writing to numerous government departments seeking legal
advice in order to persue my appeal but all
of them kept referring me
to one office, the Athlone Justice Centre for assistance. That office
to me is of no assistance. On the
2 July 2002 Ms Desai who is the
senior executive at Justice Centre wrote me a letter and said I do
not qualify for legal aid as
I have served more than six months of my
sentence and that is according to the guide policy of 2002 Legal Aid
paragraph 3.1.2.8.
I fail to understand that because I applied 3 days
after my sentence and it is a failure within their office not to
speed up my
process.’
[7] The above
explanation was not contained in a sworn statement or affidavit. It
was set out in a document titled ‘notice
of condonation’.
The court below was willing to overlook the procedural imperfection
and made allowance for the fact that
the document was drawn by the
appellant himself. Guided by considerations such as the length of the
delay, the explanation therefor
and the prospects of success on the
merits, the court a quo found that the delay was inordinately long
and that non-compliance
with Rule 67 (1) was gross.
[8] The court below
assessed the explanation given by the appellant in the context of his
right to appeal entrenched in s 35 of
the Constitution. Applying the
principle of fairness to both the appellant and the State, the court
below concluded that in the
absence of a satisfactory explanation,
condonation ought to be refused. The court reasoned thus:
‘
The longer
the delay, generally speaking, the more reluctant will a court of
appeal be to condone it and the more persuasive will
the explanation
for the delay have to be before condonation can be granted. In this
case the explanation is, in my view, far from
satisfactory or
persuasive. In fact, in my opinion it is totally inadequate.’
[9] This court has a
restricted power of interference with the decision of a court a quo
in relation to a condonation application.
It must be persuaded that
that court did not exercise a judicial discretion.
3
In
Mabaso
v Law Society, Northern Provinces and Another
4
,
the Constitutional Court succinctly outlined the test in the
following terms:
‘
The Rules of
[the Supreme Court of Appeal] provide that it may condone the failure
to comply with its Rules, and condonation will
ordinarily be granted
when sufficient cause is shown. It is trite law that a court
considering whether or not to grant condonation
exercises a
discretion. The discretion must, of course, be exercised judicially
on a consideration of all the facts and “in
essence it is a
matter of fairness to both sides”. It is clear that the SCA may
decide an application for condonation without
considering the merits
of the case, though it does so only where there is a gross and
flagrant failure to comply with its Rules.
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”.’
[10] The court a quo
was well aware that allowance had to be made for the appellant’s
own involvement in the pursuit of his
appeal. But it also recognised,
very properly, that such involvement could not supplement fundamental
lacunae
in the substance of the application.
[11] In considering
an application for condonation a court must take into account a
number of considerations. These 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.
5
[12] Before us,
although the appellant’s attorney conceded that the explanation
given for the delay was inadequate, he argued
that the court below
was wrong in finding that ‘nothing happened’ from the
moment the appellant was sentenced until
10 September 2002 when a
notice of appeal was lodged. He submitted that Mr Fortuin was
instructed to prosecute the appeal but failed
to do so. The error
pointed out by the attorney does not affect the inadequacy of the
explanation given for the delay. Even if
the step taken by the
appellant in instructing Mr Fortuin is discounted from the period of
four years, there remains a period of
three and half years for which
there was no explanation furnished. Where non-compliance with the
rules is time-related, the explanation
must cover the entire period.
In
Uitenhage
Transitional Local Council v SA Revenue Service
6
,
Heher JA repeated the admonition previously issued to practitioners
who bring applications such as the present. He said:
‘
One would
have hoped that the many admonitions concerning what is required of
an applicant in a condonation application would be
trite knowledge
among practitioners who are entrusted with the preparation of appeals
to this Court: condonation is not to be had
merely for the asking; a
full, detailed and accurate account of the causes of the delay and
their effects must be furnished so
as to enable the Court to
understand clearly the reasons and to assess the responsibility. It
must be obvious that, if the non-compliance
is time-related then the
date, duration and extent of any obstacle on which reliance is placed
must be spelled out.’
7
[13] Moreover the
attorney who represented the appellant in the court below did not
heed the above admonition.
8
She did not apply her mind to the propriety of the form followed by
the appellant in drafting the papers. Nor does she appear to
have
considered whether the notice filed set out an acceptable explanation
for the delay. Not only did Fortuin not make an affidavit
corroborating the appellant and explaining his own conduct, but no
explanation was offered by the appellant for the failure to
obtain
such an affidavit. From the heads of argument she filed on the
appellant’s behalf in this court, it seems that she
does not
appreciate the basic requirements for a successful application for
condonation. Her heads of argument also omitted to
deal with the test
for interference by this court in orders refusing condonation. I
mention these matters not as criticism of the
appellant, but rather
to emphasise that the seriously inadequate case originally made by
the appellant gained nothing by what was
done on his behalf by his
legal representatives prior to the hearing in this court.
[14] Regarding
prospects of success on appeal, the appellant’s attorney
submitted before us that, since the record has been
lost and cannot
be reconstructed, the appellant has good prospects of success.
Reliance for this proposition was placed on
S
v Chabedi
9
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.’
[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.
[16] It follows from
what I have said that the approach of the court a quo cannot be
faulted. In the result the appeal is dismissed.
________________
C N JAFTA
JUDGE OF APPEAL
APPEARANCES:
FOR
APPELLANT: C B Brand
Instructed
by Justice Centre, Cape Town
Legal
Aid Board, Bloemfontein
FOR
RESPONDENT: M Allie
Instructed
by
The Director of
Public Prosecution,
CAPE
TOWN
The
Director of Public Prosecution
BLOEMFONTEIN
1
S v Gopal
1993
(2) SACR 584
(SA);
S v Leon
1996 (1) SACR 671
(A) and
S v Mohlathe
2000 (2) SACR 530
(SCA).
2
Rule 67 (1) then provided: ‘A convicted
person desiring to appeal under section 103 (1) of the Act shall
within 14 days
after the date of conviction, sentence or order in
question, lodge with the clerk of the court a notice of appeal in
writing
in which he shall set out clearly and specifically the
grounds, whether of fact or law or both fact and law, on which the
appeal
is based.’
3
In the sense discussed in
S
v Leon
1996 (1) SACR 671
(A) at
673b-h; see also
S v Basson
2007 (3) SA 582
(CC) at paras 110-111.
4
[2004] ZACC 8
;
2005 (2) SA 117
(CC) para 20.
5
Federated Employers Fire and General Insurance
Co Ltd v McKenzie
1969 (3) SA 360
(A);
S v Adonis
1982 (4) SA 901
(A) and
S v Di Blasi
1996 (1) SACR 1
(A).
6
2004 (1) SA 292
(SCA).
7
Id para [6].
8
Not the attorney who appeared before us in the
appeal.
9
2005 (1) SACR 415
(SCA) para 5.