S v Liesching and Others

• Jurisdiction: South Africa
• Judge: Mogoeng CJ, Nkabinde ADCJ, Froneman J, Jafta J, Khampepe J, Madlanga J, Mbha AJ, Mhlantla J, Musi AJ and Zondo J
• Judgment Date: 15 November 2016
• Citation: 2017 (2) SACR 193 (CC)
• Docket Number: CCT 245/15 [2016] ZACC 41
• Hearing Date: 06 September 2016
• Counsel: HL Alberts and EA Guarneri for the applicants, instructed by Legal Aid South Africa.SJ Khumalo for the first respondent. DJ Joubert SC for the second respondent.
• Court: Constitutional Court

Musi AJ (Mogoeng CJ, Nkabinde ADCJ, Froneman J, Jafta J, Khampepe J, Madlanga J, Mbha AJ, Mhlantla J and Zondo J concurring):

Introduction

[1] B The President of the Supreme Court of Appeal (the President) dismissed the applicants' application to refer the refusal of their petition to the Supreme Court of Appeal for reconsideration. The applicants approached this court seeking leave to appeal against that decision.

Background

[2] C On 17 November 2011 between 20h00 and 20h30, Messrs Sherwin Arries, Marlin Abrahams, Gordon Swiegers and Renaldo Leeroy Booysens (deceased) were standing in front of house No [. . .] Bluebell Street, Reiger Park, Boksburg.

[3] D A Volkswagen Polo (vehicle) with four occupants drove in their direction and gunshots were fired at them from the vehicle. The deceased was struck and fell down. Two of the occupants alighted from the vehicle and shot at the deceased whilst he was lying on the ground. He died at the scene. The three applicants were arrested and charged in the High Court of South Africa, Gauteng Local Division, E Johannesburg, with murder (count one), unlawful possession of firearms (count two) and unlawful possession of ammunition (count three).

High Court

[4] At the trial, Mr Arries testified that he knew all four occupants of the F vehicle. He identified them as the three applicants and one Arthur (who was not charged with the applicants). Messrs Abrahams and Swiegers testified that the applicants were in the vehicle, but they did not know the fourth person.

[5] Each of the applicants proffered an alibi defence and called witnesses G in support. The trial judge rejected their respective alibis and accepted the testimonies of Messrs Arries and Abrahams. He rejected Mr Swiegers' testimony.

[6] All three applicants were convicted of all charges and sentenced as follows:

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H Count one: life imprisonment;

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count two: three years' imprisonment; and

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count three: two years' imprisonment.

[7] On 9 July 2012 the trial court granted them leave to appeal against their respective sentences only. They petitioned the President for leave to I appeal against their convictions too. Their petition was dismissed on 6 November 2013.

Recantation

[8] After their petition was dismissed, Mr Arthur Saimons, purportedly J the fourth person in the vehicle, was charged with the same crimes.

Musi AJ

[9] Mr Arries testified during Mr Saimons' trial. He recanted his earlier A testimony and, inter alia, testified that he did not see who shot the deceased and that the applicants were not at the SCene of the crime. He further testified that Mr Saimons was not the 'Arthur' to whom he had referred during the applicants' trial. He alleged that he was persuaded by the investigating officer to commit perjury during the applicants' trial. B

[10] Mr Saimons was found not guilty and discharged in terms of s 174 of the Criminal Procedure Act (the CPA) [1] on 24 March 2014.

Supreme Court of Appeal C

[11] The applicants became aware of what transpired during Mr Saimons' trial. They approached the President with an application to refer the refusal of their petition to the court for reconsideration, in terms of s 17(2)(f) of the Superior Courts Act [2] (the SC Act). The application was based on the further evidence that came to light during Mr Saimons' trial. D

[12] On 24 December 2014 the President dismissed their application. His reason for the dismissal was, briefly, that the further evidence that the applicants sought to adduce was discovered after they had exhausted all recognised appeal procedures provided for in the CPA. He pointed out E that s 1 of the SC Act provides that 'appeal' in ch 5 does not include an appeal in a matter regulated in terms of the CPA. He held that s 327(1) of the CPA makes provision for cases where a convicted person wants to adduce further evidence that became available after all the recognised legal procedures pertaining to appeal had been exhausted. He held that F ch 5 of the SC Act, and therefore s 17(2)(f), is not applicable to the applicants' case. The President issued his order, refusing to refer their application for reconsideration, on 24 December 2014.

Condonation

[13] The application for leave to appeal was filed, in this court, on G 14 December 2015. In terms of rule 19(2) of this court's rules, the application ought to have been lodged within 15 days after the President's order. [3]

Musi AJ

[14] A Condonation may be granted if the interests of justice permit. Whether it should be granted depends on the facts and circumstances of each case. The factors to consider when determining whether it is in the interests of justice to grant condonation include: the extent of the delay; the explanation for the delay; the effect of the delay on the administration B of justice and other litigants; the importance of the issues to be raised in the appeal; the prospects of success; and the nature of the relief sought. The interests of justice must be determined with reference to all relevant factors. [4]

[15] The delay in this matter, which is 226 days, is excessive. The C applicants who were and still are represented by Legal Aid South Africa (Legal Aid) state that the delay is not due to their fault. They aver that the order was sent to the Bloemfontein Justice Centre. It was received on 15 January 2015 by their legal representative, Mr Guarneri, who is attached to the Johannesburg Legal Aid offices. He drafted the application D and the founding affidavit was signed, by the first applicant, on 5 February 2015.

[16] After drafting the papers, Mr Guarneri consulted with Mr Karam, a senior litigator at Legal Aid, to peruse the papers. They met on 27 March 2015 and Mr Karam suggested that the papers should be amended. E They also decided to refer the matter to the impact-litigation unit of Legal Aid (the Unit) which deals with the majority of Legal Aid's constitutional matters. On 16 April 2015 they met with an attorney from the Unit. They were advised to provide a written motivation for the matter to be categorised as an impact matter, with budget for senior F counsel's opinion. On 10 June 2015 they consulted senior counsel. He provided a written legal opinion on 15 September 2015. On 9 November 2015 the constitutional case-management committee of Legal Aid South Africa (the CCMC) met to consider the opinion. It resolved, on the same day, to approach this court with applications for G condonation and leave to appeal.

[17] The explanation is inept and unfortunate. It is an embodiment of institutional bureaucracy, which is characterised by an excessively layered procedure which would, in most cases, cause unwarranted delays. H The systemic delays were exacerbated by the time it took for meetings to take place or actions to be taken. It is not explained when the papers were given to Mr Karam. There is no explanation for the delay between 27 March 2015 and 16 April 2015. There is no explanation as to when the motivation was sent to the Unit. There is also no explanation why senior counsel took three months to render the opinion. Likewise, there I is no explanation why the CCMC took so long to consider the opinion.

Musi AJ

Why it took a month and a few days after the meeting of the CCMC to file A the applications is also not explained. All these delays occurred whilst the applicants were in prison.

[18] The deleterious delays were clearly caused by the applicants' legal representatives. Legal Aid should urgently look at its processes and endeavour to eradicate the deleterious delays. Although there is a limit B beyond which a litigant would not be allowed to hide behind his or her legal representative's ineptitude, this is not such a case. The applicants were incarcerated. They had no hand in the delays. This is not a case where the applicants should be punished for the delays caused by their legal representatives.

[19] The application for condonation is not opposed. This matter raises C important legal issues that deserve this court's consideration. The prospects of success are good. Irrespective of the poor explanation, it is in the interests of justice to grant condonation.

Leave to appeal D

[20] The applicants seek leave to appeal. They must show that the matter falls within the scope of s 167(3)(b) of the Constitution [5] and that it is in the interests of justice for leave to appeal to be granted.

[21] This matter concerns the interpretation of legislation. In terms of s 39(2) of the Constitution, we are obliged, when interpreting legislation, E to promote the spirit, purport and objects of the Bill of Rights. [6] In Bakgatla-Ba-Kgafela[7] this court stated:

'It is by now trite that s 39(2) of the Constitution has introduced a new approach to the interpretation of statutes. The section obliges courts to promote "the spirit, purport and objects of the Bill of Rights" when F construing legislation. This new approach has been described as a mandatory constitutional canon of statutory interpretation.' [8]

The application therefore raises a constitutional matter.

Musi AJ

[22] A The correct interpretation of and interplay between ss 1 and 17(2)(f) of the SC Act, on the one hand, and s 327 of the CPA, on the other, has not yet been considered by this court. This matter also raises an arguable point of law of general public importance which ought to be considered. A judgment by this court would give clarity and certainty about the reconsideration of petitions in criminal matters where further B evidence is sought to be adduced. The prospects of success, though not decisive, are good. It is in the interests of justice to grant leave to appeal.

Submissions

[23] The applicants do not challenge the constitutionality of s 17(2)(f) C of the SC Act or s 327 of the CPA. They contend that s 17(2)(f), as...