S v Taeke

• Jurisdiction: South Africa
• Judge: Khumalo J and Matthys AJ
• Judgment Date: 18 August 2021
• Hearing Date: 18 August 2021
• Docket Number: A 224/2020
• Citation: 2022 (1) SACR 436 (GP)
• Court: Gauteng Division, Pretoria
• Counsel: MB Kgakgara for the appellant, instructed by Pretoria Justice Centre. L Williams for the respondent.

Khumalo J (Matthys AJ concurring):

Introduction

[1] Taeke Nkute, the appellant, was on 31 January 2014 convicted by the Benoni Regional Court (the trial court) on two counts, namely

Khumalo J (Matthys AJ concurring)

robbery with aggravating circumstances and murder. On 11 February 2014 he was sentenced to 15 years' and life imprisonment on the respective counts. With leave granted by the court a quo on 29 May 2014 he is appealing against both convictions and sentences. He nevertheless in terms of s 309(1)(a) of the Criminal Procedure Act 51 of 1977 (the CPA) had an automatic right to appeal against the conviction and the life-imprisonment sentence that were imposed on the murder charge.

[2] On 11 December 2020 the parties were informed of 19 April 2021 being the set-down date for the hearing of the appeal, and a directive issued for the heads of argument to be filed on or before 19 February 2021. On 15 March 2021 the respondent filed a notice for the striking of the appellant's appeal from the roll, on the basis of appellant's failure to adhere to the directive and rules of court, in that he had failed to file his heads of argument on the specified date. On 18 March 2021 the appellant's heads of argument were filed without an application for condonation for non-compliance, or a response to the respondent's notice for the matter to be struck from the roll.

[3] The appellant is granted legal assistance by Legal Aid South Africa.

[4] It is common cause that the record is incomplete. According to the appellant, the plea proceedings and the entire evidence of the state witnesses are missing. This has resulted in the notes of the magistrate from pp 1 – 10, and the judgment filed, to constitute the reconstruction of the record. Whilst according to the respondent the record is incomplete, in that the proceedings on 11 February 2014, which are the sentencing procedure and the judgment on sentence, are not part of the record.

[5] The prosecution of the appeal is taking place more than five years after leave to appeal was granted; the appellant has, however, not applied for condonation for the delayed prosecution.

[6] The appellant, without addressing the issues of the respondent's notice of objection and condonation, primarily argues that there has not been a proper reconstruction of the record and the notes of the magistrate cannot be referred to as a reconstructed record. The appellant and the other accused have not been involved in the reconstruction of the record, even though it is required that all the parties be present during the reconstruction process, be involved by having an input and agree on the reconstructed record.

[7] He further contends that, although the duty lies with the appellant to place an adequate record of the proceedings before the court of appeal, the state is the custodian of the trial records and has the duty to provide a record to the court of appeal. No fault can be attributed to the appellant for not placing a proper record before the honourable court of appeal.

[8] As a result appellant argues with reference to S v Sebothe and Others 2006 (2) SACR 1 (T) that, where there is no record of the proceedings and it is impossible to reconstruct the record, as there would be no fair

Khumalo J (Matthys AJ concurring)

hearing of the appeal in terms of s 35 of the Constitution of the Republic of South Africa, 1996 (the Constitution), the conviction and sentence should be set aside.

[9] There are therefore two objections before the court that are to be dealt with in limine. The first one is that of the respondent, that the matter should not proceed before the court, but be struck from the roll due to appellant's failure to file heads of argument timeously as per directive. The appellant has also not applied for condonation of the late filing of his heads of argument.

[10] Furthermore, even though the appellant failed to prosecute his appeal timeously, delaying for a period of more than five years, he has not applied for condonation. The failure to apply for condonation can be raised mero motu by the court. The two condonation issues have therefore to be addressed prior to considering the appellant's objection to dealing with the merits of the appeal and his demand that the convictions and sentences be set aside on the basis of the incomplete record.

On delay and condonation

[11] The appellant has not addressed the issue of the delay and/or condonation for the late prosecution of the appeal that is five years late, as is evident from the record. The appellant mainly just objects to the appeal proceeding on the basis that, for the reason that the record is incomplete, he would not be afforded a fair trial in the context of the prosecution of his appeal, and therefore the convictions and sentences should be set aside.

[12] This court takes a dim view of parties disregarding its rules, and generally requires that a reasonable explanation be given for a delay, in an application for it to determine if the delay can be condoned. In the face of such a long delay the application for condonation is imperative, and failure to apply for condonation fatal, as the appellant cannot bring the appeal without having applied for and been granted condonation. Consequently, the appeal is not properly before the court until a decision has been made on condonation. In Grootboom v National Prosecuting Authority 2014 (2) SA 68 (CC) (2014 (1) BCLR 65; [2013] ZACC 37) para 23 this court held that:

'It is now trite that condonation cannot be had for the mere asking. A party seeking condonation must make out a case entitling it to the court's indulgence. It must show sufficient cause. This requires a party to give a full explanation for the non-compliance with the rules . . . . Of great significance, the explanation must be reasonable enough to excuse the default.'

[13] A full, detailed and accurate account of the causes of the delay and their effects must be furnished, so as to enable the court to understand clearly the reasons and to assess the responsibility. Factors which usually weigh with this court in...