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[2016] ZANCHC 80
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Job v S (K/S30/1999) [2016] ZANCHC 80 (25 November 2016)
IN
THE HIGH COURT OF SOUTH AFRICA
NORTHERN
CAPE DIVISION, KIMBERLEY
Case
number: JA 78/10
Case
No: K/S 30/1999
Heard on: 10/11/2016
Delivered on :25/11/2016
In
the matter between:
PATRICK
JOB
Applicant
And
THE
STATE
Respondent
JUDGMENT: APPLICATION FOR LEAVE TO APPEAL
MAMOSEBO
J
[1]
The applicant, Mr Patrick Job, is an offender serving 33 years
imprisonment at the Tswelopele Correctional Centre, Kimberley.
He was
convicted on 15 October 1999 on a charge of murder, a second
charge of unlawful possession of a firearm and the third
of unlawful
possession of ammunition. He was sentenced by the retired Judge of
this Division, Van der Walt J, on 18 October 1999
to an effective 33
year term of imprisonment. On the charge of murder he was sentenced
to 30 years imprisonment. The charges of
unlawful possession of a
firearm and ammunition were taken together for purposes of sentence
and a three year term was imposed.
This application for leave to
appeal, unusually, therefore calls for some elaboration.
[2]
The Court expressed itself as follows in meeting out the sentence:
“
Ek
sal ook versoek dat hy nie vir parool oorweeg word voor hy nie ten
minste 25 jaar gevangenisstraf uitgedien het nie.”
The
applicant seeks leave to appeal against the sentence but limited to
the non-parole period of 25 years, to the Full Bench of
the Northern
Cape Division. He further seeks condonation for the late filing of
his application for leave to appeal.
Condonation
[3]
It is common cause that the application for condonation is 17 years
late. However, the Supreme Court of Appeal has authoritatively
pronounced in
Melanie v Santam Insurance Co. Ltd
1962
(4) SA 531
(A) at 532B – E:
“
In
deciding whether sufficient cause has been shown, the basic principle
is that the Court has a discretion, to be exercised judicially
upon a
consideration of all the facts, and in essence it is a matter of
fairness to both sides. Among the facts usually relevant
are the
degree of lateness, the explanation therefor, the prospects of
success, and the importance of the case. Ordinarily these
facts are
interrelated: they are not individually decisive, for that would be a
piecemeal approach incompatible with a true discretion,
save
of course that if there are no prospects of success there would be no
point in granting condonation.
Any attempt to formulate a rule of thumb would only serve to harden
the arteries of what should be a flexible discretion. What
is needed
is an objective conspectus of all the facts. Thus a slight delay and
a good explanation may help to compensate for prospects
of success
which are not strong. Or
the
importance of the issue and strong prospects of success may tend to
compensate for a long delay.
(Own
emphasis). See also
S
v Van der Westhuizen
2009 (2) SACR 350
(SCA)
at
353c-d (para 4).
[4]
Counsel for the respondent, Ms Ilanga, opposed the granting of the
condonation contending that the delay was wanton and the
explanation
given by the applicant was inadequate. In
S v Mantsha
2009 (1) SACR 414
(SCA) at 419e – h (para 12) Jafta JA
stated:
“…
..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, 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.’”
[5]
The applicant raised the following reasons for the delay:
5.1 On 09 February 2000 state counsel, Adv W
Shiburi, issued a notice
of
intention to have the matter struck off the roll in terms of
Rule49(3) of the Superior Court Rules on 29 February 2000 on the
grounds of non-compliance with the Rules or failure to prosecute his
appeal;
5.2 On 25 May 2000 the Registrar of this Court
addressed a letter to the
Head
of Prison, Kimberley, informing him that the appeal served before Van
der Walt J at which hearing the applicant was legally
represented by
Adv M Muhlohlonyi. The record was incomplete and Van der Walt J
struck the matter from the roll;
5.3 On 03 November 2000 a letter was addressed to the
Registrar by
Tobie Kotze Bergh & De Beer Inc on instructions of
the Legal Aid Board, Upington, requesting a merit report in order to
advice
the LAB on prospects of success on appeal. The applicant
maintained that he had already applied twice for Legal Aid
representation
and in addition, was interviewed by a certain Mr Bergh
of Kotze Bergh & De Beer Inc in March 2001 but nothing positive
came
out of that interview. A second application was launched in 2002
for legal aid representation to no avail. He had, at the stage
of
writing this letter, served three and half years of his sentence
already.
5.4
The applicant was incarcerated in Mangaung Maximum Security
Prison when he addressed an undated letter to the Supreme
Court of
Appeal, probably around June 2003, using the High Court Kimberley
postal address. The letter was received by the Office
of the Director
Public Prosecutions (DPP), Kimberley, on 23 June 2003. The request
was aimed at the intervention of the DPP to
help him get a Legal Aid
attorney.
5.5
On 05 December 2003 the Kimberley Justice Centre (alias LAB)
furnished the Registrar with a list of all the offenders
or inmates
who had applied for legal assistance in their applications for leave
to appeal. Their applications, which included the
applicant’s,
were declined. The reasons for denying the application were not
stated on the document. The applicant states
that he wrote to the
Registrar in December 2003 after being denied legal assistance but no
response was forthcoming from the Registrar’s
office. He
insisted that the Registrar sets down his application for leave to
appeal and furnish him with the date of the hearing.
5.6 On 12 January 2004 the applicant wrote another
letter to the Registrar
stating
that the Kimberley Justice Centre has denied him legal assistance and
opted to pursue the application for leave to appeal
in person.
5.7 On 16 March 2004 the applicant wrote a letter
to the Registrar and
informed
him that the Kimberley Justice Centre informed him that his
application for legal assistance is already more than 6 months
late
but he was at liberty to continue with the process in person. I have
established that the LAB’s policy at the time,
rightly or
wrongly, was not to render assistance if an indigent applicant
approached them only after six months of a judgment having
been
delivered. Happily, those days are gone.
5.8 In a letter dated 21 June 2004 addressed to
the Judge President,
Northern
Cape Division, he alleged that he lodged an appeal on 18 October
1999, within the 14 days of his conviction and sentence
which he
claims was granted but was struck off the roll. He experienced
problems with the Legal Aid Board.
[6]
The Judge President delegated the Assistant Registrar, Mr Brand, to
deal with the complaint.
The latter
wrote a letter dated 25 June 2004 to the applicant
and informed him that his application will be
allocated a date
of hearing which will be communicated to him in due course.
[7]
A complaint for undue delay for the prosecution of the appeal was
lodged with the Office of the Public Protector who in turn
addressed
a letter dated 24 January 2005 to the Registrar of this Court. The
Registrar informed the Office of the Public Protector
that the appeal
was set down for Wednesday 23 February 2005 at 10h00. There is
further a note addressed to the Head of Prison which
stated that the
appeal was set down for 03 March 2005 at 09h00.
[8]
On 17 June 2010 the Registrar issued a notice that the application
for leave to appeal was set down for Friday 03 September
2010 at
09h00. A copy was served on the DPP and Kimberley Justice Centre.
Copies of the judgment on sentence and the applicant’s
papers
were attached. Majiedt AJP brought the hearing forward
to 02 September 2010 at 09:00. The application, at which
the
applicant was apparently represented by Mr L Setouto of the Kimberley
Justice Centre, was struck off the roll for failure
to lodge
an application for condonation.
[9]
The said Mr Setouto addressed a letter on 02 September 2010 to
Mangaung Correctional Services under the heading:
RE APPLICATION
FOR LEAVE TO APPEAL. KS 30/99 (PATRICK JOB)
which reads:
“
Kindly
take note that your application for leave to appeal was heard today
2
nd
September 2010. However your application was removed from the roll.
This means that you can still bring the application.
The
problem the court had was that you did not provide enough reasons why
it took almost 11 years before you [brought] the application
for
leave to appeal.
Should
we not receive any response by the 2
nd
October 2010 we will assume that you do not want to continue with
the application and your file will be closed.”
[10]
This was not good enough because Mr Setouto should have drafted the
papers for condonation on his behalf. Subsequent to the
matter being
struck from the roll in 2010 there was no further communication. It
is not known whether this last letter from the
Justice Centre even
reached the applicant or not.
[11]
The applicant clearly never abandoned his intention to have the
decree by Van der Walt J set aside that he serves at least
25 years
of his effective 33 year sentence before he is considered for parole.
It is therefore for the aforementioned reasons that
I deem it
equitable and fair that the applicant should succeed with the
condonation application, irrespective of the merits or
demerits. The
delay was systemic and institutionally based over which the
applicant had very little control.
The
non-parole recommendation: What are applicant’s prospects.
[12]
In as far as the non-parole recommendation is concerned Ms Ilanga
argued that the applicant committed the offences on 24 December
1997
before s 276B(1) of Act 51 of 1977 (the CPA) came into operation on
01 October 2004, and that since the said section has no
retrospective
operation it finds no application in this matter. This section
provides:
“‘
(a)
If a court sentences a person convicted of an offence to imprisonment
for a period of two years or longer, the court may as
part of the
sentence, fix a period during which the person shall not be placed on
parole.
(b)
Such period shall be referred to as the non-parole-period, and may
not exceed two thirds of the term of imprisonment imposed
or 25
years, whichever is the shorter.”
[1]
[13]
Harms JA dealt with the suitability of a non-parole period in
Mhlakaza & Another
[1997] ZASCA 7
;
1997 (1) SACR
515
(SCA) AT 521d – f as follows:
“
The
function of a sentencing court is to determine the maximum term of
imprisonment a convicted person may serve. The court has
no control
over the minimum or actual period served or to be served…..
The lack of control of courts over the minimum sentence
to be served
can lead to tension between the Judiciary and the Executive because
the executive action may be interpreted as an
infringement of the
independence of the judiciary.”
[14]
In
S v Stander
2012 (1) SACR 537
(SCA) paras 12 and 16
Snyders JA pronounced:
“
[12]
Despite the fact that s 276B grants courts the power to venture onto
the terrain traditionally reserved for the executive,
it remains
generally desirable for a court not to exercise that power.
[16]
…An order in terms of s 276B should therefore only be made in
exceptional circumstances, when there are
before the sentencing court
that would continue, after sentence, to result in a negative outcome
for any future decision about
parole.”
[15]
In any event, as the State also correctly conceded, s 276B of the CPA
only came into effect on 01 October 2004; long after
the applicant
was sentenced. The applicant may have been unfairly treated in that:
15.1
A prisoner sentenced to life imprisonment before 01 October 2004
could be considered for parole after serving 20
years.
15.2 After 01 October 2004 a prisoner
serving a life sentence is eligible to be considered for release on
parole after
serving 25 years.
Therefore
without Van der Walt J’s decree the applicant may have been
considered for parole already, taking into account the
remission of
sentence through a presidential amnesty etc. See
Van
Vuuren v Minister of Correctional Services and Others
2012
(1) SACR 103
(CC);
S
v Mthinkhulu
2013
(2) SACR 89
(SCA).
[16]
In
Jimmale and Another v S
[2016] ZACC 27
Nkabinde J
writing for the unanimous court instructively pronounced:
“
[16]
The Court remarked further that ‘the consideration of the
suitability of a prisoner to be released on parole requires
the
assessment of facts relevant to the conduct of the prisoner after the
imposition of sentence.’ It endorsed Pauls [S v
Pauls
2011 (2)
SACR 417
(ECG)], and said that exceptional circumstances cannot be
spelled out in advance in general terms, but should be
determined
on the facts of each case. The Court said that there
‘should be circumstances that are relevant to parole and not
only aggravating
factors of the crime committed, and a proper
evidential basis should be laid for a finding that such circumstances
exist.’
The Supreme Court of Appeal said that two issues arise
when a court considers imposing a non-parole period:
‘
First,
whether to impose such an order and, second, what period to attach to
the order. In respect of both considerations the parties
are entitled
to address the sentencing court. Failure to afford them the
opportunity to do so constitutes a misdirection.’
[17]
In my view, there are reasonable prospects of success on appeal
regard being had to the instructive remarks by the Supreme
Court of
Appeal and the Constitutional Court in the aforementioned judgments.
There is also no reason why condonation should
fail since strong
prospects of success tend to compensate for the long delay.
[18]
In the result the following order is made:
1.
Condonation for
the late filing of the application for leave to appeal is granted.
2.
The applicant is
granted leave to appeal to the Full Bench of this Division, limited
to the order by Van der Walt J relating to
the non-parole period of
25 years before he could be considered for parole.
3.
It is ordered
that the Kimberley Justice Centre must serve the Notice of
Appeal on the Registrar of this Court and the Office
of the Director
of Public Prosecutions (DPP) not later than 30 January 2017.
4.
The DPP must
then issue the required Notices not later than 13 February 2017 after
consultation with the Judge President for a date
of hearing.
_____________________
MAMOSEBO J
NORTHERN CAPE HIGH COURT
For
the applicant:
Adv V.Z Nel
Instructed
by:
Legal-Aid SA
Kimberley Justice Centre
For the respondent:
Adv KF
Ilanga
Instructed by:
Office of the Director Public Prosecutions
Kimberley
[1]
Inserted by
s 22
of the
Parole and Correctional Supervision
Amendment Act 87 of 1997
, promulgated on 12 December 1997 but only
put into operation on 01 October 2004.