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RE PL'BLIC OF SOU TH AFRI CA
IN THE HIGH COURT OF SOUTH AFRICA
LIMPOPO DIVISION, POLOKWANE
CASE NO : 5781/2024
(1) REPORTABLE : YES /NO
(2) OF INTEREST TO THE J DGES : Y SINO
(3) REVISED
OATEps(171~GNATURE .................... .
(
In the matter between:
PHINEAS KGAHLISHO LEGODI Applicant
And
DIRECTOR OF PUBLIC PROSECUTION, LIMPOPO 1st Respondent
REGIONAL COURT MAGISTRATE J NGOBENI N.O 2nd Respondent
REGIONAL COURT MAGISTRATE J KGANYAGO N .O 3rd Respondent
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Delivered: This judgment is handed down electronically by circulation to the parties
through their legal representatives' email addresses. The date for the hand-down is
deemed to be the 5th December 2024
LEAVE TO APPEAL: JUDGEMENT
LEDWABAAJ
[1] The applicant seeks leave to appeal the whole judgment and orders of
the 16th August 2024. Only the first respondent opposes this leave to
appeal application (the application).
[2] It is common cause that the application is nineteen days outside the
prescribed fifteen days' period. The applicant applies for the condonation.
The first respondent opposes this condonation application and prays for
its dismissal.
[3] The reason for failure to timeous deliver the application is stated as being
the result of luck of funds and the absence of Adv Monene as counsel of
the applicant's choice. Adv Monene was appointed the acting judge and
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was unavailable to attend the hearing. He was not timeously available to
consult and settle the application. The applicant avers the prospects of
success lies in that the judgment misdirected itself and that another court
would come to a different conclusion. The submission is that the interest
of justice justifies the granting of condonation application.
[4] The first respondent submits that although the right to choose a legal
representative is a fundamental right guaranteed by section 35(3)(f) of the
Constitution, it is limited by the limitation clause of the Constitution,
having regard to other considerations. The first respondent submits that
the applicant was legally represented by another counsel who could have
proceeded with the leave to appeal processes in the absence of Adv
Monene.
[5] The first respondent further submits that the financial challenges could
have been overcome by the applicant making the application personally
or approaching the Legal Aid Board for financial assistance.
[6] Rule 27(3) of the Uniform Rules requires a condonation applicant to show
good cause for non-compliance to be condoned. Such applicant is
required to show good cause for the court to exercise its discretion in
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favour of granting the condonation application.
[7] The discretion to grant or refuse an application arises once an applicant
has satisfactorily explained the delay or non-compliance, has proved
prospects of success and the absence of prejudice. There is no point in
granting condonation where there are no prospects of success. Slight
delay and a good explanation may nevertheless help to compensate
prospects which are not strong. Unexplained long delay does not need
consideration of prospects of success. The interest of justice i$ the
overriding factor.1
[8] Luck of funds and the absence of the applicant's own paid counsel of
choice justifies this court exercising its discretion in favour of grating
condonation application. It is in the interest of the applicant and the first
respondent that condonation application for the late delivery of leave to
appeal be granted.
1 Brumm er v Gorfil B rothers lJwestmen t (Pty) Ltd (2000) ZACC 3 - par 3 ; Grootboom v National Prosecuting
A uthority & Others (2013 )ZACC 37;20 l 4{2)SA 68(CC); - para 20, 22, 23 and 35
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[9] Section 17(1)(a) of the Superior Courts Act 10 of 2013 allows the hearing
court to grant leave to appeal where the judges concerned are of the
opinion that the appeal would have a reasonable prospects of success or
there are compelling reasons which exist why the appeal should be
heard, such as the interest of justice. If the court is unpersuaded that
there are reasonable prospects of success, it must still enquire into
whether there are compelling reason to entertain an appeal. If the
reasonable prospect of success is established, leave to appeal should be
granted. Similarly, if there are some other compelling reasons why the
appeal should be heard, leave to appeal should be granted 2.
[1 O] The order issued by Magistrate Vorster is not attached to the interdict
application for it to be read to be against the first respondent deciding to
re-instate the charges against the applicant. The concession from the bar
by the applicant's counsel that absence the order issued by Magistrate
Vorster, it cannot be read to have the effect of taking away the first
respondent's constitutional authority to reinstate the criminal proceedings
which have been removed from the roll, is well made.
~ Rarnakatsa & Others v African National Congress & Another (2021) ZASCA 31-par 10
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[11] On behalf of the applicant it is submitted that the intended leave to appeal
has not only prospects of success, but raises the constitutional fair trial
right.
[12] I am still not persuaded that another court would interdict the first
respondent which had not been joined in respect of the Gauteng North
High Court review application.
[13] I am still also not persuaded that another would find that the applicant has
made out a case for an interim interdict. In particular, I still stand by the
position that section 35(3) of the Constitution grants the applicant
alternative relief. The balance of convenience favours that the applicant
should raise with the trial presiding officer any pre-trial issue to be fully
ventilated before the start of the criminal proceedings on merits.
[14] Section 35(3) of the Constitution guarantees the applicant fair trial right,
including the right to be presumed innocent. The criminal proceedings
presiding officer is required to observe this right.
[15] I am not convinced that another court would find that the applicant has
proved clear right as he submits.
[16] I am not persuaded that another court would find that there are
compelling reasons to grant leave to appeal.
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[17] There is no basis to deviate from the general position that the costs
should follow the results.
Order
[18] Condonation application is granted.
[19] The application for leave to appeal is declined.
[20] The applicant is ordered to pay the costs of this application on party and
party scale.
EDWABA LGP
CTING JUDGE OF THE HIGH COURT , LIMPOPO
DIVISION POLOKWANE;
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APPEARANCES
FOR THE APPLICANT : ADV G MONENE
INSTRUCTED BY : SIGWAVHULIMU ATTORNEYS INC
FOR THE FIRST RESPONDENT : ADV FJ VAN DER MERWE
INSTRUCTED BY: DIRECTOR OF PUBLIC PROSECUTION: LIMPOPO
DATE OF HEARING : 29 NOV EMBER 2024
DATE OF JUDGEMENT: 5 DECEMBER 2024