Recent Case: Criminal procedure

• Jurisdiction: South Africa
• Pages: 95-108
• Published date: 24 May 2019
• Author: Michael Cowling
• Date: 24 May 2019

Recent Cases • Vonnisse

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95

Criminal Procedure

MICHAEL COWLING

University of Natal, Pietermaritzburg

Appeal — late filing of leads of argument—condonation

Melane v Santam Insurance Co Ltd 1962

(4) SA 531(A) sets out the

requirements for an application for condonation for late noting of an appeal.

In very basic terms it is necessary for the judicial officer hearing such

application to give consideration to the degree of lateness together with any

explanation therefor. The granting of condonation is a judicial exercise

requiring consideration of all the facts and, ultimately, is a 'matter of fairness

to both sides' (at 532). However, the presence or absence of prospects of

success can be overriding since, in the absence of such prospects there

would be no point in granting condonation.

In

S v Mohlathe

2000 (2) SACR 530 (SCA) the appellant failed to file heads

of argument on the specified date. Two days before the date of setdown of

the appeal hearing he made an application for condonation in respect of the

late filing of the heads of argument. The case took an interesting turn when it

was alleged by the appellant that the reason for the late filing of heads was

due to the incompetence, inefficiency and dilatory approach of his legal

representative. This then raised the thorny question as to under what

circumstances and to what extent the sins of legal representation can be

visited upon the client. Ordinarily this could not serve as a justification (see

Saloojee v Minister of Community Development

1965 (2) SA 135 (A)) but the

court found peculiar circumstances in the present case. These were to the

effect that the appellant (who was in custody) and his family had not just sat

back and left the question of the filing of heads of argument exclusively

under the responsibility of counsel. Instead, his family had taken a 'keen and

active interest in the prosecution of the appeal and kept themselves informed

of developments' (at 536g).

Although the advocate failed to put up an affidavit in support of the

condonation it was alleged in the appellant's mother's supporting affidavit

that she had first had the opportunity to review a draft copy of the heads a

few days prior to the deadline for the filing of heads. She further alleged that

one of the reasons for the delay was that she had submitted to the advocate a

list of issues that she wanted him to deal with. This was further evidence of

the effort that the appellant and his family had put into pursuing the appeal.

At the end of the day it was necessary for the court to weigh up the

circumstances confronting the appellant. On the one hand the interests of the

(2001) 14 SACJ 95

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