S v Odhiambo

• Jurisdiction: South Africa
• Judgment Date: 27 August 2019
• Citation: 2020 (1) SACR 266 (WCC)

S v Odhiambo
2020 (1) SACR 266 (WCC)

2020 (1) SACR 266

Citation	2020 (1) SACR 266 (WCC)
Case No	11054/2019
Court	Western Cape Division, Cape Town
Judge	Binns-Ward J and Cloete J
Heard	August 16, 2019
Judgment	August 27, 2019
Counsel	Counsel details not supplied

Flynote : Sleutelwoorde

Review — In what cases — Lengthy delay before instituting application — Character of review, as one bearing on assertion of applicant's fundamental rights, not exempting it from general rule that review applications to be brought within reasonable time.

Review — In what cases — Incompetence or inadequacy of legal representative — Allegations by applicant not borne out by record of proceedings and not justifying bringing of application after unreasonable delay.

Headnote : Kopnota

After being convicted in a regional magistrates' court of rape and sentenced to 10 years' imprisonment, of which four years were suspended, the applicant unsuccessfully applied for leave to appeal. His subsequent petition to the High Court was also unsuccessful and in the present proceedings he sought to review the proceedings in terms of s 22(1)(c) of the Superior Courts Act 10 of 2013. By the time the proceedings were brought on 9 April 1919, a period of 14 months had already elapsed since his sentence. The court noted that the application was doomed to failure at the first hurdle by reason of it having been brought with unreasonable delay. The character of the review, as one bearing on the assertion of the applicant's fundamental rights, did not exempt it from the incidence of the general rule that applications for the review of administrative or judicial decisions had to be brought within a reasonable time, and would not otherwise be entertained unless the court was persuaded that the interests of justice required that an exception be made. (See [6] – [7].)

The charge against the applicant arose from an incident one night when the complainant, an 18-year-old woman, who was a virgin at the time, was accompanied by her blind boyfriend and a male companion at a bar where they ate and drank. At midnight they moved to the upstairs bar where the applicant was the barman. A cocktail was mixed for her and shortly after drinking it she became confused and unable to focus. Her next recollection was waking up in bed wearing only her underwear. The applicant, who was completely naked, was kissing her. After a struggle she managed to push him off and got dressed, left the flat and was collected by a friend. She laid a complaint and, when the police interviewed the applicant, he told the police official that he had engaged in oral sex with the complainant. In his application for leave to appeal, the applicant alleged that he had had 'partial penetration'. The main line of attack on the conviction was the allegation that the legal representative who had represented him at the trial had closed his case without his testimony and had made a concession that he had partial penetration with the complainant.

Held, that, notwithstanding the unreasonable delay attending the institution of the review and the absence of any acceptable explanation for it, the court would still have been inclined to condone the delay if the facts had suggested that the applicant's conviction had followed on a vitiating miscarriage of justice attributable to any inadequacy in the quality of his legal representation. But that was not the case. It was inherently improbable that any legal practitioner, even an inept or inexperienced one, would make an admission of partial penetration in the context of defending a client on a charge of rape if their instructions were not to that effect. (See [51] – [52].)

2020 (1) SACR p267

Held, further, that the record bore out that the legal representative did not summarily close the defence case without calling the applicant to give evidence, but showed that, following upon the unsuccessful application for the applicant's discharge at the close of the state's case, the legal representative asked for and was given an adjournment to consult with the applicant on the course of action to be followed. He had thereafter reported that the decision to close the applicant's case without calling any evidence had been made after 'careful deliberation'. (See [59].)

Held, further, that the applicant had not shown that his legal representative's conduct of his case did not fall within the wide range of reasonable professional assistance or that it gave rise to cognisable prejudice. There were accordingly no good grounds to exercise the court's discretion in his favour by condoning the unreasonable delay with which the review application was instituted. (See [67] – [68].) The application was dismissed.

Cases cited

Southern Africa

Coopers (South Africa) (Pty) Ltd v Deutsche Gesellschaft für Schädlingsbekämpfung mbH 1976 (3) SA 352 (A): referred to

De Villiers v The State and Another [2014] ZAFSHC 82: referred to

De Villiers v The State and Another [2016] ZASCA 38: referred to

Gqwetha v Transkei Development Corporations Ltd and Others 2006 (2) SA 603 (SCA) ([2006] 3 All SA 245; [2005] ZASCA 51): referred to

R v D and Another 1953 (4) SA 384 (A): referred to

R v Matonsi 1958 (2) SA 450 (A): referred to

R v Parmanand 1954 (3) SA 833 (A): referred to

S v Dalindyebo 2016 (1) SACR 329 (SCA) ([2015] 4 All SA 689; [2015] ZASCA 144): referred to

S v Halgryn 2002 (2) SACR 211 (SCA) ([2002] 4 All SA 157): dictum in para [14] applied

S v Louw 1990 (3) SA 116 (A) ([1990] ZASCA 43): referred to

S v Masuku 2017 (2) SACR 321 (WCC) ([2016] ZAWCHC 77): dictum in paras [21] – [23] compared

S v Mponda 2007 (2) SACR 245 (C) ([2004] 4 All SA 229): referred to

S v Okah 2018 (1) SACR 492 (CC) (2018 (4) BCLR 456; [2018] ZACC 3): dictum in para [70] applied

S v Tandwa and Others 2008 (1) SACR 613 (SCA) ([2007] ZASCA 34): referred to

Setsokosane Busdiens (Edms) Bpk v Voorsitter, Nasionale Vervoerkommissie, en 'n Ander 1986 (2) SA 57 (A): referred to

Swart v Starbuck and Others 2017 (5) SA 370 (CC): referred to

Wolgroeiers Afslaers (Edms) Bpk v Munisipaliteit van Kaapstad 1978 (1) SA 13 (A): dictum at 41E – F applied.

Canada

R v GDB [2000] 1 SCR 520: referred to

R v Joanisse (1995) 102 CCC (3d) 35 (Ont CA): referred to.

United States

Strickland v Washington 466 US 668 (1984): referred to.

Legislation cited

Statutes

The Superior Courts Act 10 of 2013, s 22(1)(c): see Juta's Statutes of South Africa 2018/19 vol 1 at 2-226.

Case Information

An application for the review of a conviction for rape in a regional magistrates' court.

2020 (1) SACR p268

Order

1.

The late delivery of the second respondent's answering papers is condoned.

2.

The application for the review and setting-aside of the criminal proceedings against the applicant in Stellenbosch Regional Magistrates' court case No SSB 165/2015 is refused.

Judgment

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),

2020 (1) SACR p269

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 —...