S v Femel (Leave to Appeal)

• Jurisdiction: http://justis.com/jurisdiction/166,South Africa
• Judge: Hendricks JP and Petersen ADJP
• Judgment Date: 17 August 2023
• Citation: 2023 JDR 3149 (NWM)
• Hearing Date: 04 August 2023
• Docket Number: CA 37/2017
• Court: North West Division, Mahikeng

Petersen ADJP:

Introduction

[1]

The appellant was charged in the Regional Court, Atamelang with three counts. Count 1 : Contravening section 3 of Criminal Law (Sexual Offences and Related Matters) Amendment Act 32 of 2007 read with section 51 and Part I of the Criminal Law Amendment Act 105 of 1997 (‘the CLAA’). Count 2: Robbery with aggravating circumstances read with section 51(2) of the CLAA. Count 3: Assault with intent to do grievous bodily harm. The appellant was convicted on 29 June 2017 as charged on all three counts and sentenced on even date to twenty (20) years imprisonment on count 1; ten (10) years imprisonment on count 2; and one (1) year imprisonment on count 3. The Regional Magistrate ordered that the sentences run concurrently. The appellant was therefore sentenced to an effective twenty (20) years imprisonment.

2023 JDR 3149 p3

Petersen ADJP

[2]

On 12 July 2017, the appellant only sought leave to appeal against his conviction on the three charges, which leave was granted by the Regional Magistrate.

[3]

The parties agreed to dispense with hearing of oral arguments and that the appeal be decided on the papers.

The failure to lodge an application for reinstatement of the appeal

[4]

The appeal herein was set down for hearing for the first time on 6 May 2022. The appeal was postponed from 6 May 2022 to 26 August 2022, for reasons unknown. On 26 August 2022, the appeal was removed from the roll on the basis that the heads of argument of the respondent were not in the file. The record, however, reflects that the heads of argument of the respondent were in fact filed on 19 August 2022. The heads of argument of the appellant however, were only filed on 31 August 2022, after the appeal was removed from the roll on 26 August 2022. The order of 26 August 2022 is clearly recorded incorrectly as it was in fact the heads of argument of the appellant and not those of the respondent that were not filed. If any blame is to be apportioned for the appeal not being heard on 26 August 2022, it must be attributed to the appellant.

[5]

The appeal was subsequently set down for hearing before this Court on 11 August 2023. In the papers before this Court, the appellant applies for condonation for the late prosecution of the appeal. The appellant has, however failed to apply for the reinstatement of the

2023 JDR 3149 p4

Petersen ADJP

appeal, after the removal thereof from the roll on 26 August 2022, as a result of...