THE SUPREME COURT OF APPEAL OF SOUTH AFRICA

JUDGMENT

Not Reportable
                                                                                                    Case No: 530/2017

In the matter between:

MUSTAQH SAYED                                                         FIRST APPELLANT
AASIM COTWELL                                                     SECOND APPELLANT
MOHAMED RAWAT                                                     THIRD APPELLANT
and

THE STATE  	       RESPONDENT                                    

Neutral citation:	Sayed v The State (530/2017) [2017] ZASCA 156 (24 
November 2017)

Coram:	Ponnan, Petse, Willis JJA and Lamont and Schippers AJJA

Heard:		1 November 2017

Delivered:		24 November 2017

Summary: Condonation and reinstatement of lapsed appeal – explanation for delay in lodging notice of appeal and appeal record inadequate – delay extreme and explanation unacceptable – condonation refused – special plea of autrefois acquit and application to stay prosecution - no prospect of success – conduct of judicial officer - must be seen to be independent and impartial and treat persons with civility and courtesy – referred to Magistrate’s Commission.
__________________________________________________________________

ORDER
__________________________________________________________________

On appeal from: Gauteng Division of the High Court, Pretoria (Pretorius and Bam JJ sitting as Court of Appeal):
‘1 The application for condonation is dismissed.
2 The Registrar is directed to forward a copy of this judgment to the Magistrate’s Commission and to the President of the Regional Court for Benoni.’
__________________________________________________________________
JUDGMENT
__________________________________________________________________

Schippers AJA (Ponnan, Petse and Willis JJA and Lamont AJA concurring):

[1]	This appeal lapsed for failure on the part of the appellants to timeously prosecute it. The initial question before us is whether such failure should be condoned and the appeal reinstated. 

Facts
[2]	The appellants were convicted in the regional court Benoni, of murder, attempted murder and two counts of kidnapping in 2006. Their case was referred to the North Gauteng High Court, Pretoria (the high court), for sentence in terms of the former s 52 of the Criminal Law Amendment Act 105 of 1997 (the Act). Section 52(1) provided that if a regional court, after it had convicted an accused of an offence referred to in Schedule 2 to the Act, was of the opinion that such offence merited punishment in excess of its jurisdiction under s 51, the court shall stop the proceedings and refer the accused to the high court for sentence. 

[3]	In July 2009 the case came before Louw J in the high court. The learned judge requested a statement from the regional magistrate setting out her reasons for the convictions, as contemplated in s 52(3)(b) of the Act. After considering the regional magistrate’s statement, Louw J set aside the convictions on the basis that the proceedings in the regional court were irregular and not in accordance with notions of basic fairness and justice guaranteed by the Constitution. 

[4]	In November 2010 fresh charges were preferred against the appellants on the original complaint in the regional court, Benoni (the second trial). In that trial they raised a special plea of autrefois acquit and applied for a permanent stay of prosecution. The regional court dismissed the special plea on the grounds that the appellants were not acquitted on the merits of the case against them; and refused a stay of prosecution on the ground that they did not suffer irreparable prejudice. The appellants were granted leave to appeal to the high court.

[5]	The court a quo (Pretorius J and Kganyago AJ) dismissed the appeal. It held that the magistrate had correctly rejected the plea of autrefois acquit because Louw J had set aside the appellants’ convictions solely on account of the irregularities in their trial in 2006, not on the merits of the case; and that there were no extraordinary circumstances warranting a stay of prosecution. 

[6]	The appellants then applied to this Court for special leave to appeal, which was granted on 9 September 2014. In terms of rule 7(1) of the rules of this Court, the appellants were required to lodge their notice of appeal within one month after they were granted leave to appeal. Under rule 8(1) they had to lodge the record within three months of delivery of the notice of appeal. They lodged the notice and the record of proceedings (which in this case consisted only of 250 pages) only on 31 May 2017, more than two years later. By then the appeal had lapsed. 

The applications for condonation
[7]	The appellants brought two applications for condonation for the late filing of the appeal record and the notice of appeal. The Director of Public Prosecutions (DPP) opposed the application to condone the late filing of the record. The second application for condonation was not opposed.

[8]	The observation of  Heher JA in Uitenhage Transitional Local Council v South African Revenue Service regarding the requisites for condonation, is particularly apposite:
‘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.’

[9]	The factors which a court considers when exercising its discretion whether to grant condonation, include the degree of non-compliance with the rules, the explanation for it, the importance of the case, the respondent’s interest in the finality of the judgment of the court below, the convenience of the court and the avoidance of unnecessary delay in the administration of justice.

[10]	The applications for condonation are hopelessly deficient: there is no detailed account of the causes of delay and long periods of time during which nothing was done in preparation of the appeal (ranging from three months to one year) are unexplained. To begin with, the applications for condonation of the late filing of the record and the notice of appeal, were brought only on 17 March 2017 and 11 May 2017, respectively. It is settled that an appellant must apply for condonation without delay whenever he realises that he has not complied with a rule of this Court. Why the applications for condonation were brought at such a late stage, has also not been explained. 

[11]	The appellants’ attorney, Mr C Botha, has done nothing in the preparation of the appeal, nor furnished any explanation for the causes of the delay. Instead, he abdicated that responsibility to Ms M P Jiyane, an administrative assistant in his employ. Ms Jiyane deposed to the founding affidavit in each of the condonation applications and said that her duties ‘are to oversee and to administer all matters regarding the . . . appeal’. All the steps taken to compile the record were done by the appellants’ counsel, Mr H F Klein.

[12]	 The explanation for the delay in Ms Jiyane’s affidavit is the following. Shortly after receiving the order granting leave to appeal (dated 9 September 2014), a quotation to compile the record was sought. Mr Klein decided which documents should form part of the record and handed them to the transcribers who informed him that the parties had to agree to the documents that should be included in the record. No details were given as to when this was done. 

[13]	Nearly six months later, on 4 March 2015, a delay which is unexplained, Mr Klein had a meeting with Mr G Maritz of the DPP and it was agreed that the third appellant’s attorney should also be involved in the preparation of the record. On 2 April 2015 a letter to that effect was written to the third appellant’s attorney and on 4 May 2015 the contents of the record were finalised between the parties, including Mr Louw, for the third appellant. It took three months to decide what documents should form part of a 250-page record.

[14]	On 19 May 2015 Mr Klein wrote to the DPP to enquire if the State’s only eyewitness, a Mozambican citizen, had absconded; and whether the trial would proceed. On 12 August 2015 the DPP advised the appellants’ attorneys that the witness was available and would testify. The appellants have not given any indication of the steps taken, if any (for nearly three months), to ascertain from the DPP whether the trial would proceed.

[15]	Another two months went by and, on 16 October 2015, Mr Klein and Mr Maritz signed a ‘memorandum of agreement’ in terms of which they agreed to limit the appeal record. This, despite the fact that the contents of the record had already been finalised between the parties on 4 May 2015. There is no explanation for the delay between 12 August 2015 and 16 October 2015 (two months). A ‘year later’ (in October 2016), Ms Jiyane says that they amended the memorandum of agreement, by which time the record had still not been lodged. 

[16]	Ms Jiyane’s affidavit is silent as to when the documents comprising the record were given to the transcribers. There is thus no explanation for the delay between 4 May 2015 (when the contents of the record had been finalised) and January 2016 – a period of eight months - when Mr Klein collected the record from the office of the Legal Aid Board, Pretoria. 

[17]	When Mr Klein fetched the record from the Legal Aid Board in January 2016, he kept a copy for himself and Mr Louw, and handed the remaining copies to Ms Jiyane. She kept them in her office until September or October 2016 (at least nine months) when Mr Klein collected them. This delay also, is not explained. Ms Jiyane says that shortly after receiving the record (again, no details are given), ‘Mr Klein realised that the record was not the record he requested from the Transcribers’, and asked her not to send it to their correspondent attorneys in Bloemfontein. 

[18]	The transcribers took about two weeks to compile the record, between 21 October 2016 and 3 November 2016, when they certified it as being correct. Once again, there is no explanation for a delay of some seven months - between 3 November 2016 when the record was completed and 31 May 2017 - when it was eventually filed. Even after those long delays, a proper record of the proceedings was not lodged.  Important documents (such as the record of postponements in the regional court and the judgment by the regional magistrate in the first trial) were not included in the record; and documents which should not have formed part of the record, such as heads of argument and counsel’s address, were included. 

[19]	I come now to the application for condonation of the late filing of the notice of appeal. Ms Jiyane gave a single reason for the late filing of the notice. It is this: ‘[W]e were under the erroneous impression that the application for leave to appeal filed in the High Court Appeal, was sufficient.’ This is not an explanation, let alone a satisfactory one, for the delay in filing the notice. Of course, had Mr Botha simply read the rules when leave to appeal was granted, he would have known precisely when the notice of appeal and the record had to be filed. An attorney instructed to note an appeal is required to acquaint himself with the rules of the court in which the appeal is to be prosecuted. The notice of appeal was not lodged timeously because Mr Botha neglected his duties to the court and his clients, and left the matter entirely in the hands of an administrative assistant, who evidently has no legal training. 

[20]	Further, the late filing of the record and notice of appeal has a direct impact upon the respondent’s interest in the finality of the judgment by the court a quo. Here the appellants are facing serious criminal charges in the regional court, the judgment in favour of the respondent concerns a special plea and a refusal to stay a prosecution and not the merits of the matter, and both the Constitution and the interests of justice require that the pending case against them be finalised expeditiously. 

[21]	Ms S Fisher-Klein, who appeared for the appellants, rightly conceded that there has been a flagrant disregard of the rules, but submitted that non-compliance with the rules by the attorney should not be laid at the door of the appellants. The dictum of Steyn CJ in Salojee, provides a complete answer to this submission:
‘I should point out, however, that it has not at any time been held that condonation will not in any circumstances be withheld if the blame lies with the attorney. There is a limit beyond which a litigant cannot escape the results of his attorney’s lack of diligence or the insufficiency of the explanation tendered. To hold otherwise might have a disastrous effect upon the observance of the Rules of this Court. Considerations ad misericordiam should not be allowed to become an invitation to laxity. In fact this Court has lately been burdened with an undue and increasing number of applications for condonation in which the failure to comply with the Rules of this Court was due to neglect on the part of the attorney. The attorney, after all, is the representative whom the litigant has chosen for himself, and there is little reason why, in regard to condonation of a failure to comply with a Rule of Court, the litigant should be absolved from the normal consequences of such a relationship, no matter what the circumstances of the failure are.’

[22]	Moreover, this Court has held that in cases of flagrant breaches of the rules, especially in the absence of an acceptable explanation, condonation may be refused regardless of the merits of the appeal; this applies even where the blame lies solely with the attorney.
[23]	Although this is a case where condonation could justifiably be refused irrespective of the merits of the appeal, we nevertheless invited Ms Fisher-Klein to address us on the merits of the appeal so as to enable us to assess its prospects of success.

[24]	As already stated, in the second trial the appellants raised the plea of autrefois acquit, namely that they had already been acquitted of the offences with which they were charged, as contemplated in s 106(1)(d) of the Criminal Procedure Act 51 of 1977. The rule against double jeopardy is enshrined in s 35(3)(m) of the Constitution, which states that every accused person has a right to a fair trial, which includes the right not to be tried for an offence for which that person has previously been either acquitted or convicted.

[25]	More than 80 years ago, in Manasewitz, Stratford JA held that the requisites for a plea of autrefois acquit are that the accused must have been tried previously on the same charge by a court of competent jurisdiction and acquitted on the merits. This holding has been affirmed by the Constitutional Court as follows: 
‘The requirement that the previous acquittal must have been on the merits, or to put it differently, that the accused must have been in jeopardy of conviction, means that, if the previous prosecution was vitiated by irregularity, then it cannot found a plea of autrefois acquit in a subsequent prosecution. That is because the accused was not acquitted on the merits and was never in jeopardy of conviction because the proceedings were vitiated by irregularity.’
[26]	This is such a case. Louw J held that the proceedings were not in accordance with justice because of the conduct of the regional magistrate, Ms E Schutte, more particularly in the following respects. The regional magistrate required a trial within a trial to establish whether witness statements were read by, or read back to, the relevant deponent, before the defence could cross-examine on those statements. She had repeatedly interjected during the presentation of evidence, took over the questioning and made inappropriate comments on the value of the evidence whilst it was being adduced. In the course of the proceedings the regional magistrate indicated that she had already made up her mind as to the injuries sustained by the complainant. 

[27]	The regional magistrate almost immediately took over the questioning of Mr Sayed, the first appellant, during his evidence in chief. His cross-examination covered some 44 pages, in which there were 93 interruptions by the magistrate. When Mr Sayed, who is Muslim, testified, the regional magistrate questioned him and then sarcastically remarked: ‘I think I should go to a mosque okay.’ The regional magistrate also took over the examination of deceased’s wife, to the point that the prosecutor remarked that he could not compete with the court. 

[28]	The regional magistrate appears to have prejudged the evidence of a police officer when, in the course of his evidence, she said:
‘No, listen, listen you know what sir I hope to God that you do something else but investigate or attend scenes you are not being coerced, the point is I am telling you and Mr Botha [the defence attorney] will tell you that on the evidence it is common cause between the state and the defence you are wrong full stop.’

[29]	 Louw J held that a reasonable person ‘would infer bias as the most likely reason for the regional court magistrate’s unwarranted findings, utterances and her judicial impatience and intolerance’; and concluded that in the light of the extensive nature of the irregularities, the convictions had to be set aside. The following statement by Louw J, namely, ‘I do not give judgment on the merits of the case’, places it beyond question that the appellants’ convictions were not set aside on the basis of any finding on the merits, but on account of the irregularities in the proceedings before the regional court which were so gross that they rendered the entire trial invalid. This Court has held that in such a case, the conviction is set aside without reference to the merits and the accused can be retried.

[30]	For the above reasons the appellants’ plea of autrefois acquit, in my opinion, has no prospect of success in the appeal.

[31]	As to the stay of prosecution, the appellants contended that the court a quo erred in not finding that a cumulative time-lapse of nine years was so unreasonable as to warrant a stay of prosecution. That, however, does not paint the true picture and ignores the following facts. The proceedings in the regional court ran over three years, during which there was no unreasonable delay. Additional time was taken with obtaining the s 52 statement from the regional magistrate; and the appellants were subsequently acquitted because of gross irregularities which rendered their entire trial invalid. The appellants were released on bail and consequently suffered no prejudice.

[32]	Indeed, it is the appellants’ case that unreasonable delays were caused by postponements in the high court since their first appearance on 22 August 2007 until Louw J delivered judgment on 25 September 2009; and that this was ‘the most expensive period’ during which three advocates were engaged for five days. In this regard the appellants relied upon the right to a fair trial in terms of s 35(3) of the Constitution, which includes the right to a speedy trial (s 35(3)(d)) and the right to a legal practitioner of their choice (s 35(3)(f), seemingly on the basis that the appellants may run out of funds and will have to be assisted by the Legal Aid Board. 

[33]	On the totality of the evidence, I do not consider that the delays in the high court justify a stay of prosecution. The case could not be heard on 22 August 2007 due to an overcrowded roll. It was postponed to 14 April 2008, 12 May 2008, 13 October 2008 and 14 April 2009 because the record was not in the court file. The judge who had to hear the case on 14 April 2009 recused himself because he knew the regional magistrate too well. Louw J heard the case on 27 July 2009 and requested the regional magistrate to furnish reasons for the conviction. The case was postponed to 21 August 2009 and judgment was delivered on 25 September 2009. The appellants were not prejudiced at all, on the contrary their convictions were set aside.

[34]	The decision to retry the appellants was made in October 2009. There is no explanation as to why the second trial commenced a year later, on 1 November 2010. The appellants were given written notice to appear and released on warning. The trial was delayed because in March 2011 the appellants made representations to the DPP to withdraw the charges against them. On 31 May 2011 their attorney was informed that the representations were unsuccessful. Thereafter, the appellants sought an order in the high court ‘requesting Judge Louw to amend, change or supplement his judgement [as to] whether the merits were indeed considered by him’. On 14 February 2012 the appellants withdrew that application and subsequently requested the trial court to postpone the case to 31 May 2012.

[35]	On 31 May 2012 the plea of autrefois acquit and the application for a stay of prosecution were argued in the regional court. Judgment was delivered on 14 September 2012 and thereafter the appellants were granted leave to appeal to the high court, which dismissed the appeal on 8 November 2013. Subsequently, on 9 September 2014 this Court granted the appellants special leave to appeal. 

[36]	So, from the date of their first appearance in the second trial, the delays in the finalisation of that trial were caused solely by the appellants, as a result of their representations to the DPP, their application for the clarification of the order of Louw J and the appeals pursuant to the dismissal of the plea of autrefois acquit and their application for a stay of prosecution. 

[37]	In these circumstances, an application for a stay of prosecution is simply unjustified. The appellants have been charged with very serious crimes: murder, attempted murder and two counts of kidnapping. As the Constitutional Court has held, barring a prosecution before a trial begins, without any opportunity to ascertain the real effect of a delay on the outcome of the case is far-reaching as ‘it prevents the prosecution from presenting society’s complaint against an alleged transgressor of society’s rules of conduct.’ Such radical relief will seldom be justified in the absence of significant prejudice to the accused.

[38]	Although there was some delay in the high court between August 2007 and September 2009, the appellants were not prejudiced by the delay; and they suffered no prejudice as a result of the delays pursuant to the second trial. And the circumstances of their case are nowhere near extraordinary to justify a stay of their prosecution. 

[39]	In my view, the application for a stay of prosecution likewise has no prospects of success on appeal. 

[40]	It follows that the only appropriate order in the circumstances, is one dismissing the application for condonation of the late filing of the appeal record. 

[41]	 What remains is the unjudicial conduct of the regional magistrate. I have referred above to the irregularities which Louw J found evinced bias on the part of the regional magistrate. This led to a miscarriage of justice where the appellants had been convicted of serious charges. What is more disturbing is that the appellants’ case was not the first in which the regional magistrate has displayed such conduct: three appellate courts, including this Court, have found that she behaved in a manner unbecoming a judicial officer. 

[42]	In Ndlangamandla, the high court found that neither the prosecutor nor the defence were given an opportunity to present evidence in a manner they considered appropriate because the regional magistrate constantly descended into the arena. She behaved in an ‘irritable, derogatory and outrageous manner’; she was discourteous to all officials, parties and witnesses, and hurled insults with impunity. The court noted that the regional magistrate had contemptuously ignored its admonishments in the past. 

[43]	This Court in Smith, found that the regional magistrate was rude to the prosecutor, the witnesses, the appellant in that case, and his attorney. She interfered with the presentation of the case. She did not treat the officers of the court, the witnesses or the appellant with dignity. Her interjections ‘were often derogatory and insulting and sometimes nonsensical.’

[44]	In Phiri the court observed:
‘The trial is fraught with serious irregularities impacting the core of the proper administration of justice. The said irregularities are manifested by the manner of criticising the police, the prosecution, the defence and this court. Ms … has been called stupid, the public prosecutor is directed to watch TV and DSTV on channel 69, and she was also given lessons on how to conduct the prosecution during court proceedings. From the record nearly every arm of the court is labelled incompetent. I must remark, as I hereby do, that such conduct is unbecoming and should be discouraged at all costs. Discourtesy to witnesses cannot be condoned as well as insults hurled with impunity in facie curiae.’

[45]	The conduct of the regional magistrate erodes public confidence in the judicial system. Ngcobo CJ put it this way:
‘In my view it is fundamental to our judicial system that judicial officers are not only independent and impartial, but that they are also seen to be independent and impartial. Civility and courtesy should always prevail in our courts. Litigants should leave our courts with a sense that they were given a fair opportunity to present their case. This is crucial if public confidence in the judicial system is to be maintained. And public confidence in the judicial system is essential to the preservation of the rule of law, which is so vital to our constitutional democracy. Therefore, legal representatives should not stand by as spectators over what may convey an impression of bias. They should raise any objection as soon as reasonably practicable. This will allow the judicial officer to explain his or her behaviour and, if necessary, correct that behaviour. Judicial officers, it must be remembered, are only human. This will make our courts vigilant of their behaviour and ensure that they prevent behaviour that may create an apprehension of bias.’

[46]	 In the circumstances, we have no alternative but to again refer the regional magistrate’s conduct to the Magistrate’s Commission and the President of the Regional Court, Benoni, in the hope that they will urgently take steps to avoid a recurrence of the unjudicial conduct displayed by the regional magistrate.

[47]	The following order is made: 
‘1 The application for condonation is dismissed.
2 The Registrar is directed to forward a copy of this judgment to the Magistrate’s Commission and to the President of the Regional Court for Benoni.’

_________________
                                                                                                                 A Schippers
                Acting Judge of Appeal

Appearances
For Appellant:	S F Fisher-Klein
Instructed by:
Botha Attorneys, Johannesburg
Honey Attorneys, Bloemfontein

For Respondent:		G J C Maritz
Instructed by:
Director of Public Prosecutions, Pretoria
Director of Public Prosecutions, Bloemfontein