S v Odhiambo

• Jurisdiction: South Africa
• Court: Western Cape Division, Cape Town
• Judge: Binns-Ward J and Cloete J
• Judgment Date: 27 August 2019
• Citation: 2020 (1) SACR 266 (WCC)
• Hearing Date: 16 August 2019
• Docket Number: 11054/2019
• Counsel: Counsel details not supplied

Binns-Ward J and Cloete J:

[1] The applicant was convicted in the regional magistrates' court at Stellenbosch on one count of rape on 12 December 2017. He had pleaded not guilty but closed his case without giving evidence after having applied unsuccessfully for his discharge at the end of the state's case. On 23 January 2018 he was sentenced to 10 years' imprisonment, four years of which were suspended conditionally. The trial court dismissed the applicant's application for leave to appeal his conviction on 8 February 2018, and his subsequent petition to the High Court for leave to appeal was refused on 17 August 2018. In the current proceedings, which were launched under a notice of motion in terms of rule 53 on 9 April 2019, the applicant has applied for an order in the following terms:

•

That the conviction and sentence be set aside;

•

that the criminal proceedings be directed to recommence de novo before a different magistrate; and

•

costs, in the event of the application being opposed.

The reference to rule 53 identified the character of the application as one for judicial review. .

[2] The regional court magistrate who presided over the applicant's trial was cited as the first respondent, and the Director of Public Prosecutions, Western Cape, as the second respondent. The first respondent gave notice of his willingness to abide the judgment of this court. The second respondent, on the other hand, opposed the application.

[3] The second respondent required condonation for the late delivery of its answering papers and heads of argument. This would appear to have been caused by the indisposition of counsel in the office of the Director of Public Prosecutions who had been charged with dealing with the matter. There is no good reason to refuse the application for condonation that was made in this connection. We heard argument from counsel for the state on the merits of the review, contingent upon the outcome of the condonation application.

[4] There is no allegation in the founding papers to that effect, but it appeared to us, and was confirmed in the applicant's counsel's heads of argument, that the application is directed at bringing the criminal proceedings in the regional court on review in terms of s 22 of the Superior Courts Act 10 of 2013. [1] In particular, it engages s 22(1)(c),

Binns-Ward J and Cloete J

which provides that the proceedings of any magistrates' court may be brought under review before a court of a division of the High Court on grounds of gross irregularity in the proceedings.

[5] The alleged irregularities on which the applicant relies were listed in the supporting affidavit — which was made by the applicant's current attorney of record instead of by the applicant himself — as follows:

'1.

Magistrate's acceptance of admissions in terms of s 220 of the Criminal Procedure Act 51 of 1977;

2.

The admissions in terms of s 220 of the Criminal Procedure Act — contrary to instructions;

3.

Inadequate legal representation in that the legal representative of the accused [sic]:

(a)

Made a poor application in terms of s 174 of the Criminal Procedure Act;

(b)

Had inadequate knowledge of Sexual Offences;

(c)

Closed the Defence's case despite prima facie proof presented by the State;

(d)

Failed to call the Applicant to set forth his version to the court;

(e)

Failed to call and request the witnesses not utilized [sic] by the state whose affidavits were available in the Further Particulars; and

(f)

Accepted the DNA evidence without placing same in context and requesting that the expert be cross-examined hereon [sic].'

These grounds were fleshed out, albeit very sketchily, in the founding affidavit under two subheadings, namely the 'acceptance of admissions in terms of s 220 of the Criminal Procedure Act' and 'inadequate legal representation'.

[6] As we shall explain presently, we are of the opinion that the application is doomed to failure at the first hurdle by reason of it having been brought with unreasonable delay. Finality is just as important a consideration in litigation, whether it be criminal or civil, as it is in respect of administrative action. That much was expressly acknowledged in the seminal judgment in Wolgroeiers Afslaers (Edms) Bpk v Munisipaliteit van Kaapstad 1978 (1) SA 13 (A) at 41E – F, in a passage translated from the Afrikaans [2] by Nugent JA in Gqwetha v Transkei

Binns-Ward J and Cloete J

Development Corporation Ltd and Others 2006 (2) SA 603 (SCA) ([2006] 3 All SA 245; [2005] ZASCA 51) para 22 as follows:

'It is desirable and important that finality should be arrived at within a reasonable time in relation to judicial and administrative decisions or acts. It can be contrary to the administration of justice and the public interest to allow such decisions or acts to be set aside after an unreasonably long period of time has elapsed — interest reipublicae ut sit finis litium. . . . Considerations of this kind undoubtedly constitute part of the underlying reasons for the existence of this rule.' [3]

[7] We are keenly conscious that the review challenge in the current case is, in essence, predicated on an alleged infringement of the applicant's fair-trial rights, which are entrenched in terms of the Bill of Rights. But the character of the review, as one bearing on the assertion of the applicant's fundamental rights, does not exempt it from the incidence of the general rule that applications for the review of administrative or judicial decisions must be brought within a reasonable time and will not otherwise be entertained, unless the court is persuaded that the interests of justice require that an exception be made. That the judicial policy reflected in the common-law delay rule applies even when fundamental rights are implicated is exemplified by its entrenchment in relatively absolute terms in respect of administrative decisions in terms of s 7 of the Promotion of Administrative Justice Act 3 of 2000, which procedurally regulates review remedies in respect of infringements of a person's right to administrative justice, a right equally entrenched in the Bill of Rights.

[8] A potentially two-stage enquiry is undertaken by the courts in deciding whether a delayed review that is not subject to statutorily regulated time limits should be entertained or not. Firstly, it falls to be determined whether there has in point of fact been an unreasonable delay in instituting the proceedings (which entails a finding of fact); and secondly, if there has been, whether the delay should be condoned (which entails the exercise of judicial discretion). See Setsokosane Busdiens (Edms) Bpk v Voorsitter, Nasionale Vervoerkommissie, en 'n Ander 1986 (2) SA 57 (A) at 86A – G.

[9] As the determination whether an application for judicial review has been unreasonably delayed turns on the facts, for reasonableness is by definition a context-related concept, and also because the exercise of judicial discretion does not occur in a vacuum, we shall first summarise the relevant factual background.

Binns-Ward J and Cloete J

[10] The applicant was charged with the rape and kidnapping of the complainant, who at the time of the incident on 8/9 May 2015 was an 18-year-old virgin. The state alleged that on the night in question he took her from the Happy Oak Pub & Grill in Stellenbosch to Molteno Park (where he resided) at a time when she was unable to consent thereto and kept her there against her will. It was further alleged that he raped her at the Happy Oak and/or Molteno Park by inserting his penis into her vagina. The charge-sheet was formulated on the basis that count 1 pertained to the rape and count 2 to the kidnapping.

[11] After the applicant pleaded not guilty, the following exchange took place which is germane to this application:

'Court: Okay then, listen now carefully to what your attorney, Mr Van Rooyen, is going to state regarding your plea explanations on these charges, should there be any. You are going to be required to confirm what he is going to state now. Do you understand?

Accused: Yes, Your Worship.

Court: Good. Mr Van Rooyen?

Mr Van Rooyen: Thank you, Your Worship. Your Worship, I can confirm that the accused's plea of not guilty in respect of both counts is in accordance with his instructions to me. Let me jump to the second one. In as far as the kidnappping charge is concerned it was only brought to our attention this morning. The accused instructions to me has not changed, so I can confirm that his plea of not guilty in respect of the second count is also correct. In as far as the plea explanation is concerned which will amount to the accused version, is that he was employed at the bar which is referred to in the charges put to him, being Happy Oak in Stellenbosch and that he was on duty on the day in question, and that he had almost incidentally met the complainant via a colleague and friend. In other words the complainant was introduced to him. He will further state that after the closing of the bar, which was already in the early hours of the morning, they had gone to the accused's place of residence that he shared with the friend that had introduced the complainant to him. At no stage was she forced to go. She had gone of her own free will. As was stated . . . (indistinct) sexual penetration . . . (indistinct). According to him everything was perfectly in order . . . (indistinct) later that morning when he had accompanied her to the garage . . . (indistinct). Should it come to that and the accused is required to testify . . . (indistinct) and as far as the identity of the complainant is concerned . . . (indistinct). He will also dispute that the complainant was taken against her will from the . . . (indistinct).

Court: Good. Mr Odhiambo, have you now listened carefully and have you understood everything your attorney, Mr Van Rooyen...