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[2014] ZACC 15
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Molaudzi v S (CCT 126/13) [2014] ZACC 15; 2014 (7) BCLR 785 (CC) (20 May 2014)
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CONSTITUTIONAL
COURT OF SOUTH AFRICA
Case
CCT 126/13
In the matter
between:
THEMBEKILE
MOLAUDZI
..............................................................................................
Applicant
and
THE
STATE
......................................................................................................................
Respondent
Neutral citation:
S
v Molaudzi
[2014] ZACC 15
Coram:
Skweyiya
ADCJ, Cameron J, Dambuza AJ, Froneman J, Jafta J, Madlanga J,
Mhlantla AJ, Nkabinde J and Zondo J
Decided
on:
20 May 2014
Summary:
Criminal
law – appeal against conviction – attack based on factual
findings – no constitutional issue arising
– application
dismissed – unacceptable delay in obtaining the trial record
ORDER
On appeal from
the North West High Court, Mahikeng, it is ordered that:
1.
Leave to appeal is dismissed.
2.
The Registrar is requested to forward a
copy of this judgment to the office of the National Director of
Public Prosecutions, the
Minister of Justice and Constitutional
Development, the Mahikeng Justice Centre, Lawyers for Human Rights
and the Judge President
of the Mahikeng High Court.
JUDGMENT
THE
COURT
[1]
The applicant was convicted, together with
a number of co-accused, by the North West High Court, Mahikeng (High
Court), of murder
and robbery of an off duty policeman and for
being in possession of a firearm and ammunition without a licence.
They
were sentenced to life imprisonment for murder and an
additional 21 years for the remaining crimes. The
applicant sought
and was granted leave to appeal to the Full Court.
The appeal was dismissed. The Supreme Court of Appeal
refused an
application for further leave to it.
[2]
The applicant now seeks
leave to this Court essentially on the basis that he was wrongly
convicted. The application cannot succeed.
It is based on an
attack on the factual findings made in the trial court. That does not
raise a proper constitutional issue
for this Court to entertain.
[1]
In addition, there are no reasonable prospects of success. The
Full Court considered the arguments on appeal and properly
rejected
them. The application for leave to appeal must thus be
dismissed.
[3]
There is, however, one aspect that calls
for comment and censure. The applicant was sentenced on 22 July
2004. The appeal
was only heard by the Full Court on 7
December 2012. How did this come about?
[4]
The applicant alleges that subsequent to
his conviction and sentencing he applied for leave to appeal, but was
told that he had
to obtain a copy of the trial record before his
application could be considered. The trial judge only signed a
copy of the
record in October 2008. The record was incomplete
and the applicant was told that the trial judge was attempting to
reconstruct
the record from her trial notes. Only after
intervention by the Mahikeng Justice Centre and Lawyers for Human
Rights did
the applicant receive the full trial record in 2012, some
eight years after his conviction and sentence.
[5]
This is unacceptable.
Delay in trial proceedings may render a trial unfair.
[2]
It is not necessary to decide whether a delay in appeal
proceedings might also be considered a breach of fair trial rights,
because here the record was eventually properly completed and
available for a fair assessment of the matter on appeal. It
could easily have been otherwise if the compilation of a proper
record became impossible because of a lapse of time. Judicial
officers have a duty to ensure that egregious delays of this kind do
not occur. In view of the fact that the delay was reported
to
and investigated by the Judicial Services Commission it is not
necessary to comment any further on the reasons for the delay.
[6]
In the result the application for leave to
appeal is dismissed. The Registrar is requested to forward a
copy of this judgment
to the office of the National Director of
Public Prosecutions, the Minister of Justice and Constitutional
Development, the Mahikeng
Justice Centre, Lawyers for Human Rights
and the Judge President of the Mahikeng High Court.
[1]
See
Mbatha
v University of Zululand
[2013] ZACC 43
at
paras 193-7 and 215-24;
Phoebus
Apollo Aviation CC v Minister of Safety and Security
[2002]
ZACC 26
;
2003 (2) SA 34
(CC);
2003 (1) BCLR 14
(CC) at para 9; and
S
v Boesak
[2000]
ZACC 25
;
2001 (1) SA 912
(CC);
2001 (1) BCLR 36
(CC) at para 15.
[2]
See
Sanderson
v Attorney-General, Eastern Cape
[1997]
ZACC 18
;
1998 (2) SA 38
(CC);
1997 (12) BCLR 1675
(CC) at paras 24
and 41, and section 35(3)(d) of the Constitution which states that:
“
Every
accused person has a right to a fair trial, which includes the right
to have their trial begin and conclude without unreasonable
delay.”