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2024
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[2024] ZAFSHC 258
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Msibi v S (83/2000) [2024] ZAFSHC 258 (26 August 2024)
IN
THE HIGH COURT OF SOUTH AFRICA
FREE
STATE DIVISION, BLOEMFONTEIN
Reportable:
NO
Of
Interest to other Judges: NO
Circulate
to Magistrates: NO
Case
no:
83/2000
In
the matter between:
MANDLA
ARTHUR MSIBI
APPLICANT
And
THE
STATE
RESPONDENT
Coram:
JP DAFFUE J
Heard
:
26 AUGUST 2024
Delivered
:
26 AUGUST 2024
ORDER
The
following order is made:
1.
Condonation is granted to the applicant for
lodging his application
for leave to appeal outside the prescribed time limit.
2.
Leave to appeal to the full bench of this
division is granted to the
applicant against only the sentences imposed by the honourable judge
Beckley on 6 April 2001 under case
number 83/2000.
JUDGMENT
Daffue
J
Introduction
[1]
On 4 April 2001 the applicant and a co-accused were convicted
in
respect of counts 1, 2 and 3, count 2 being a count of murder. Two
days later, on 6 April 2001, he was sentenced to forty years’
imprisonment in respect of the count of murder. The trial court
ordered that the applicant, as was the case with his co-accused,
should serve at least twenty years’ imprisonment before they
could be considered for parole (the non-parole period). The
dates
mentioned herein are not typographical errors. These proceedings were
finalised more than twenty-three years ago and the
presiding judge
has long ago completed his active service as a judge.
[2]
The applicant applies for leave to appeal to the full
bench of this
division against the imposition of his sentences, particularly the
sentence of forty years’ imprisonment. He
also filed an
application for condonation for lodging his application for leave to
appeal outside the prescribed time limit.
[3]
The application for leave to appeal was set down
for hearing on
26 August 2024 where after it was allocated to me.
Relevant
background pertaining to procedural issues
[4]
The applicant approached this court under case number
5594/2023,
citing the Minister of Justice and Correctional Services and the
Director of Public Prosecutions, Bloemfontein (DPP)
for an order
setting aside the aforesaid non-parole period. The application was
not opposed. On 23 November 2023 Loubser J granted
an order as
requested.
[5]
On 19 April 2024 the applicant filed his application
for leave to
appeal in terms of s 316 of the Criminal Procedure Act (the CPA).
Simultaneously therewith he also applied for condonation.
A founding
affidavit deposed to by the applicant is attached to the condonation
application. Annexed to the affidavit is the judgment
of Van der Walt
J (concurred in by Van der Westhuizen and Webster JJ), dismissing the
applicant’s appeal in the Gauteng High
Court, Pretoria under
case number A930/2000. In that case the trial court sentenced the
applicant to sixty years’ imprisonment
for murder and ordered
that he should not be released on parole before the expiry of a
period of twenty-five years. It is not certain
when the trial court
sentenced the applicant for the murder that occurred on 23 October
1993, but sentenced was imposed before
the imposition of sentences in
this court.
[6]
The applicant also attached the judgment on conviction
and the
sentence imposed upon him by the trial judge in this division.
Notwithstanding the fact that Mr Bantjes on behalf of the
applicant
requested the trial court to order that the sentences to be imposed
should run concurrently with the sentence of sixty
years served by
the applicant in respect of the Gauteng sentence, the trial judge
decided not to comply with this request.
[7]
Upon perusal of the documents it became clear to me that
the
applicant had presented flimsy and feeble reasons for condonation. I
deemed it necessary to contact both parties through my
secretary and
directed:
a.
the applicant to file a supplementary affidavit
on/or before 17
August 2024, if so advised, to deal with the issues raised in the
email of 1 August 2024;
b.
the DPP shall respond to both the founding
and the supplementary
affidavits in an answering affidavit, if so advised, not later than
23 August 2024;
c.
the parties to file heads of argument, if
they so wish.
[8]
The applicant did indeed file a supplementary affidavit
as well as
heads of argument. The DPP did not file an answering affidavit in
opposition of the application for condonation, but
Mr Pretorius filed
heads of argument. The DPP did not oppose the application for
condonation in respect of the reasons advanced
for the delay.
The
application for condonation
[9]
The principles applicable to granting of condonation
are well-known
and will not be set out herein. It is sufficient to state that
condonation is not for the taking and the party seeking
an indulgence
must show sufficient cause. They should also give a full explanation
for non-compliance with the rules of court.
The explanation must be
reasonable for the court to come to the conclusion that the default
should be excused.
[10]
The
interests of justice is an important aspect to be considered, but as
stated by Boseilo AJ in
Grootboom
v NPA
[1]
,
speaking for the majority, ‘… the concept “interests
of justice” is so elastic that it is not capable
of precise
definition.’ The particular circumstances of each case shall
determine which of the well-known factors to be considered
in
condonation applications are relevant, or should be given more weight
than others, to the outcome of a particular application.
[11]
The problem often experienced in the event of delays involving
appeals is the
inability to obtain the transcribed record of the
trial court. I have serious doubt if the record will be obtained in
this case.
I also accept that the trial judge will not be able to
assist with any reconstruction of the record. I am personally aware
that
Mr Bantjes, who appeared for the applicant during the trial, has
passed away. Fortunately, the appeal is not directed against the
convictions and a detailed judgment has been delivered.
[12]
I thought long and hard whether to grant condonation, bearing in mind
the monotonous
regularity which this court is faced with in about all
appeals pertaining to the disregard of the rules of court by
litigants and
lawyers. So often, a feeble, or no reasonable
explanation is given for the default. In order to allow the applicant
a further opportunity
to present an excuse for the default, I allowed
my secretary to forward correspondence to the parties referred to
above. I am still
not satisfied with the explanation provided, but in
light of the interests of justice I am prepared to grant condonation.
Grounds
for leave to appeal
[13]
The applicant recorded that on 1 March 2024 he had already served 27
years’
and six months’ imprisonment, excluding the 343
days when he escaped. He relies on a letter received from the
Department
of Correctional Services in this regard. In terms thereof
he will only become eligible for placement on parole on 12 August
2036
after having served 25 days short of 40 years’
imprisonment. This will be two months short of his 74 birthday.
According
to him, the sentence is inhumane, particularly insofar as
the trial court did not properly consider the cumulative effect of
all
the sentences. Therefore, and unless he is successful on appeal,
he will serve much longer than prisoners sentenced to life
imprisonment.
[14]
The DPP has
not seriously contended that another court would not reasonably come
to a different conclusion than the trial court.
In fact, Mr Pretorius
conceded that there are reasonable prospects of a successful appeal
on sentence. Although more is required
than a mere possibility of
success, or that the case is arguable and not hopeless, I am
satisfied that a sound and rational basis
exists to find that there
are reasonable prospects of success on appeal.
[2]
[15]
I accept that another court would reasonably conclude that the
sentence of
40 years’ imprisonment is an extremely severe
punishment and disproportionate with the seriousness of the offence
of murder,
also bearing in mind that the trial court did not order
that the sentences imposed on the applicant, or a portion thereof,
should
run concurrently with the sentence imposed in Gauteng.
[16]
The applicant is entitled to a reconsideration of the sentences
imposed on
him and consequently, leave to appeal should be granted.
Order
[17]
Consequently, the following order is issued:
1.
Condonation is granted to the applicant for
lodging his application
for leave to appeal outside the prescribed time limit.
2.
Leave to appeal to the full bench of this
division is granted to the
applicant against only the sentences imposed by the honourable judge
Beckley on 6 April 2001 under case
number 83/2000.
DAFFUE
J
JUDGE
OF HIGH COURT
Appearances
For
appellant:
ADV A
SIMPSON
Instructed
by:
Mariechen
Martins Attorneys
Bloemfontein.
For
respondent:
ADV D
PRETORIUS
Instructed
by:
Director
of Public Prosecutions
Bloemfontein.
[1]
2014
(2) SA 68
(CC) para 22.
[2]
S
v Smith
2012
(1) SACR 567
(SCA) para 7.