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[2016] ZAGPPHC 1108
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Rapholo v National Director Public Prosecutions and Others (73576/16) [2016] ZAGPPHC 1108 (27 September 2016)
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IN
THE HIGH COURT OF SOUTH AFRICA
(GAUTENG
DIVISION,
PRETORIA)
DATE:
27/9/2016
CASE
N0:73576/16
REPORTABLE
OF
INTEREST TO OTHER JUDGES
REVISED
In
the matter between:
EDWIN
MANYAKA
RAPHOLO
Applicant
and
THE
NATIONAL DIRECTOR OF PUBLIC PROSECUTIONS
First Respondent
THE
MINISTER OF JUSTICE AND CORRECTIONAL SERVICES Second
Respondent
THE
HEAD OF CORRECTIONAL
SERVICES
Third Respondent
THE
HEAD OF THE KGOSI MAMPURU 11 CORRECTIONAL
Fourth Respondent
CENTRE
THE
MINISTER OF
POLICE
Fifth Respondent
ADDITIONAL
MAGISTRATE MNCUBE
N.O
Sixth Respondent
J
U
D
G
EMENT
NEUKIRCHER
AJ
1.
It is the
most
basic
and
fundamental
principle
of
law that
all orders
of court
must be
complied
with
properly
until they
are
set
aside
[1]
and that
the most obvious
reason for
this would
be that the
integrity
of the court system relies upon the upholding of and compliance with
the judgments of
our
courts.
Implicit
in
this
too
is
that
there
is
respect
for
a judicial
system which has, at its roots, certain rules and regulations.
2.
In the present matter we are dealing with issues directly related to
the criminal justice system. If the present facts were not
so
appalling one might be constrained to believe that they formed the
script of a play of a new television series or a movie, but
helas no.
3.
On 2 December 2008 the applicant was convicted and found guilty of
culpable homicide and sentence was passed. His appealed his
conviction and sentence and on 8 March 2010, Southwood J and Goodley
AJ upheld the conviction but upheld the appeal on sentence
and
instead sentenced the applicant on counts 1 and 2 (taken together for
purposes of sentence) to 4 year's imprisonment of which
1 year was
suspended for a period of 5 years on certain conditions. The
court furthermore issued a directive that the applicant
was to hand
himself over at Voortrekker prison, also known as Atteridgeville
Men's prison within 48 hours of that order.
4.
In compliance with this order, the applicant, accompanied by this
brother in law, then handed himself over only to be told by
the
prison warder authorities that they were not in possession of his
records and that as a result, they could not detain him.
He was
instructed to return home and was told that once the authorities had
received the records from the High Court, they would
send their
officials to collect him so that he could start serving his sentence.
5.
The applicant states that he then provided the prison officials with
an address at which they could find him and he went home
and waited.
6.
Since then:
6.1.
the applicant married on 29/ May 2012;
6.2.
his first child was born on [.....] 2010;
6.3.
his second child was born on [.....] 2013;
6.4.
his wife is expecting the couple's third child;
6.5.
he obtained employment at Cell C.
7.
It appears that in the six and half years that have passed since the
order of 10 March 2010 the applicant has turned his life
around. He
has a family he supports, he is gainfully employed and he is a
contributing member of society (there is nothing on these
papers to
suggest otherwise)
8.
Out of the blue on 29 August 2016 the applicant was informed by the
clerk of the Pretoria Magistrate Court that he was to present
himself
at the Voortrekker Prison to start serving his sentence.
9.
Of course there was a flurry of activity that followed this notice-
the applicant sought urgent legal advice, his attorney addressed
correspondence to the clerk of the magistrate court,
inter
alia,
asking that the warrant for the applicant's
arrest be stayed pending an application for reconsideration of the
order given the lapse
of time but this was met with a stony refusal
and hence this application was launched.
10.
The order sought
The
thrust of the relief is twofold:
10.1
to stay the implementation of the warrant issued on 7 September 2016
pending finalisation of an application for the reconsideration
of the
appeal under case no A 576/2009, and
10.2.
preventing the arrest and detention of the applicant pursuant the
warrant, pending finalisation of the reconsideration of
the appeal
under case no A576/2009.
11.
Although the Respondents oppose the matter, they have chosen not to
file any papers. Mr Mashuga acts for the NDPP (1st respondent)
and Mr
Mothibi for the Minister of Justice and Correctional Services (3rd
respondent) and the other 4 Respondents.
12.
In brief the argument presented by Mr Mntshweni for the applicant is
the following:
12.1.
that such a considerable period of time has lapsed since sentence was
handed down on 8 March
2010 that should applicant have to serve his
sentence now, given his substantial change in circumstances, this
would impair his
dignity and freedom;
12.2.
that he now has a wife and 2 children he is responsible for and if he
is incarcerated, their
right to social security, right to livelihood
and right to education will be impaired as there will be no-one to
provide for them
and they will be left without a roof over their
heads;
12.3.
that to insist that the applicant start serving this sentence and
then launch this
novel application for
reconsideration would defeat its purpose, he would lose
his job, his family
would suffer and it would cause substantial
injustice.
12.4.
the court must take into account that serving a sentence also has a
Constitutional implication
for the applicant - his civil liberties
are taken away, he must wear a prison uniform and receives a prison
number.
13.
Mr Mntshweni also submitted that, given the Constitutional
implications of the relief sought in this matter, I was at liberty
to
grant relief under the provisions of s 172 of the Constitution.
14.
Mr Mashuga submitted that:
14.1
this application could never have laboured under the impression that
he would not be required to serve his sentence;
14.2.
that it is in the interests of justice and the interests of the
family of the deceased that the applicant
now serves the sentence
handed down;
14.3.
that if he had intended to appeal further the applicant could have
utilised the avenues open to him at the
time, but he chose not to do
so, instead 6 years later he intends to follow a path for which there
is no provision in any prevailing
legislation;
15.
Mr Mothibi took task with the issue of urgency as well as the merits
of the application and submitted that:
15.1.
6 years ago the applicant was ready to serve his sentence and now,
because his circumstances have
changed, he wants his case
reconsidered. He likened his matter to the recent case of Bob Hewett
who, after more than 40 years was
charged and convicted of rape
and sexual assault and sentenced to 6 years imprisonment;
15.2.
the applicant asks this court to interfere with an order made in
2010. To accede to this request will
bring the administration of
justice into disrepute;
15.3.
the Applicant has had 6 years to approach a court to petition or
appeal his sentence but he never did. Suddenly
on the eve of him
having to actually serve his sentence, now he wants his warrant
stayed;
15.4.
that this matter is not urgent. The matter should be struck from the
roll and the applicant
ordered to present himself to commence
serving his sentence.
16.
On the issue of costs, it was submitted that each party should bear
their own costs because of the conduct of the Respondent
in waiting 6
years to execute the warrant.
17.
In reply Mr Mnthsweni submitted that it was important to strike a
balance below the interest of justice and the interest of
the
applicant. He submitted that the Hewitt matter is not comparable as
Hewitt was only recently charged and brought to trial.
18.
What is appalling in this matter is the fact that the Third and
Fourth Respondents were seemingly unconcerned about the fact
that the
applicant presented himself to start serving his sentence and they
had not received any documents from the court as yet.
Instead of
contacting the court to obtain the necessary documents to process the
applicant so that he could start serving his sentence,
the prison
officials sent him home and said that they would send officials to
fetch him.
19.
Inasmuch
as the
Respondents
have
elected
not
to
file
any
affidavit
in this
matter,
nor
have
they
asked
for
a
postponement
to
do
so,
I must
accept the applicant's version of events.
[2]
20.
It would this appear that from 10 March 2010 until 29 August 2016 the
Third and Fourth Respondents did absolutely nothing.
21.
This is, to say the least, not only reprehensible, but also immensely
concerning: if they have left the applicant free
on the streets how
many other convicted criminals are similarly turned away from
the prisons because officials have not "received
their papers"?
How many of those simply take advantage of that situation and
disappear never to be found to actually serve
their sentences? In
this matter at least the appellant remained at the address he
furnished to the prison authorities in 2010 which
says much about his
character in my view.
22.
But it is now 6 years later. Had applicant served his sentence in
2010 he would probably have been released on parole
during late 2010
or 2013 and it goes without saying that, by now, he would have
continued with his life. Instead, thanks to the
shoddy manner in
which his case has been handled, his life has been turned upside
down. This is certainly something which merits
consideration.
23.
As Mr Mntsweni put it, the sentence of incarceration is supposed to
have a rehabilitative effect on a prisoner. In this
matter, this
rehabilitation occurred without the incarceration.
24.
Whilst I agree with that submission I must be mindful of the fact
that I must not lose sight of the public interests which
are weighed
so carefully in criminal matters. It is also in the interest of
public policy and the proper administration of justice
that sentences
handed down should be carried out efficiently.
25.
But what we
have here
is anything
but a swift
and efficient
meeting out
of
justice
and
the
question
now
is
whether,
as
has
been
said
by
our courts
in many contexts, "justice delayed
is
justice
denied".
[3]
26.ln
S
v
Cunha
(2012
JDR
2234
GNP)
the
appeal came before the full bench nearly 20 years after the incident.
The 2 accused were convicted on 27 September1999 and leave
to appeal
was granted to the accused on petition on 13 January 2006. The
accused was incarcerated on 27 September 1999 and released
on bail on
16 March 2006 pending his appeal which was eventually heard on 6
November 2012.
"[10]
In the light of the paucity
of information
pertaining
to the delay, I
am
of
the
view
that although
the
appellant
should
have
taken
steps
to pursue
the appeal,
the DPP is primarily
obliged
to
ensure
that matters are
finalised
within
a
reasonable
period
of
time,
In
my
view
the
DPP should
have
proceeded to
enrol
the
matter when
appellant
failed
to take
the
necessary
steps
to
pursue
the
appeal.
The DPP
in
my
view
has
a
duty
to
society
to
ensure
that
the
administration
of justice runs smoothly
and
in
accordance
with
the
spirit
and
ethos
enshrined
in
the Constitution.
They
would
fail
in
their
duty
to
uphold
the
Constitution
if they leave
the finalisation
of matter in the hands of
appellants
who may abuse the system by their inaction.
[11]
The
appellant
is
in
terms
of
the
Constitution
entitled
to
have
a
matter
finalised
within
a
reasonable
time,
this must also
include
appeal procedures.
Especially
a
6
years
delay
which
occurred before
the matter
came
before us
cannot
by
any
stretch
of
the
imagination
be regarded
as reasonable.
It is
virtually
impossible
to ensure
that justice is done when
a
delay like this occur
.
.
."
Also
"14]
..
......the appellant has
a
constitutionally
enshrined
right
to
a finalisation of proceedings
against him without unreasonable delay ...."
27.
Mr Mntsweni also argued that given the novel approach such an
application for reconsideration would be an extension of
his clients
constitutional rights to freedom.
28.
If he is correct in his submission then it is open to this court to
apply the provisions of section 8(3) of the Constitution,
1996 to
develop the common law to the extent that legislation does not give
effect to that right.
29.
Perhaps the argument may be taken further on the basis that, given
the lapse of 6 years since sentence was handed down,
the clear
rehabilitation of the applicant and the respondents failure to comply
properly with their duty to
"ensure that the administration
of
justice
runs smoothly
and
in
accordance
with
the
spirit
and
ethos
enshrined
in
the Constitution"
and the alleged prejudice that applicant would suffer were he to
serve his sentence now versus the interest of the public that all
sentences be carried out, that there is a case to be made for the
relief sought by applicant.
30.
This matter, and the relief I grant, however, must not be seen to be
a
carte
blanche
in all matters of this
nature. Each case is unique and must be carefully weighed on its own
merits. Perhaps had the Respondents
elected to file answering papers
the outcome may have been very different.
31.
I also make no comment on the process to be followed in the so-called
"application for reconsideration" or its
merits-I leave
that to the person or court hearing the matter.
32.
As to costs: Mr Mashuga argued that given the Respondents conduct he
could not insist on costs if successful but that no order
should be
made either way. Mr Mntsweni argued that either way the appeal should
be granted costs of the application.
33.
No order will be made as to costs. Although applicant will be
successful, he is not without blame in this matter as in
the 6 years
since he initially reported to Voortrekker prison, he has done
nothing to see to the serving of his sentence. All that,
to an
extent, redeems him are the words of my esteemed colleagues set out
in par 26
supra.
34.
Thus that order I make is the following:
34.1.
the applicant is to deliver his application for reconsideration of
the appeal under case
no A576/2009 (or whatever process he be so
advised) within 15 days of date hereof to whoever person or court he
is so advised;
34.2.
pending finalisation of the proceedings set out in 34.1 (supra) the
warrant of arrest
issued out by Magistrate Mncube on 7/9/2016
authorising the arrest of the applicant is stayed;
34.3.
pending finalisation of the proceedings set out in 34.1 (supra) the
Respondents are hereby
interdicted and restrained from arresting the
applicant and handing him over for the purpose of serving his
sentence;
34.4.
should the provisions of paragraph 34.1 (supra) not be carried out
within 15 days of date hereof,
this order will lapse immediately;
34.5.
each party shall pay their own costs of this application.
B
NEUKIRCHER
Acting
Judge of the High Court
27
September 2016
[1]
Culverwell
v Beira
1992
(4) SA 490
(w) @ 4948;
Bezuidenhout
v
Patensie Sitrus Behend Bpk 2001 (2 )SA
224(E)
@
229
B-0
[2]
Plascon-Evans Paints Ltd v Van Riebeck Paints PIL 1984 (3) SA 623
(A).
[3]
see for example S v Myaka 2012 JDR 1745 (GSJ) and many others