S v Vuma

• Jurisdiction: South Africa
• Judge: Claassen J, Malan J, Mokgoatlheng J
• Judgment Date: 03 February 2009
• Docket Number: A447/08
• Court: Witwatersrand Local Division
• Hearing Date: 02 February 2009
• Citation: 2009 JDR 0089 (W)

Mokgoatlheng J:

INTRODUCTION

(1)

On the 2 February 2009, the court set aside the conviction and sentence imposed on the appellant by the trial court and stated that it will deliver its judgment. The following are the reasons underpinning the court's order.

(2)

Du Toit AJ sitting with an assessor convicted the appellant of murder and in terms of section 51 (1) of the Criminal Law Amendment Act 105 of 1957 sentenced him to a term of life imprisonment after the trial court

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found that there were no substantial and compelling circumstances justifying the imposition of a lesser sentence.

(3)

The appeal which is with the leave of the trial court, is against the conviction and sentence and is premised on the grounds that the trial court erred in finding that:

(a)

there was common purpose between appellant and Makgoba (the erstwhile accused number 1 who died before the commencement of the proceedings in the trial court) to assault the deceased;

(b)

the appellant must have been aware of the possibility that Makgoba was armed;

(c)

the appellant held down the deceased with the intention to assist Makgoba in firing the fatal shot;

(d)

the appellant foresaw the possibility that there was a chance of the deceased being killed but persisted recklessly of such consequences in the common purpose; and

(e)

the appellant was guilty of murder on the basis of dolus eventualis.

DELAY

(4)

A disquieting feature of this matter is that it took 7 years and 7 months for the appeal to be heard. The appellant was convicted on the 22 May 2002 and sentenced on the 15 August 2002. Leave to appeal was granted on the 20 September 2002. The Notice Of Appeal was lodged on the 9 October 2002.

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(5)

The appellant was not granted bail pending the determination of his appeal. When, during argument the court asked the reason for the delay in setting down the hearing of the appeal, neither Mr Majola on behalf of the State nor Mr Penton from the Johannesburg Justice Centre on behalf of the appellant could proffer any explanation.

(6)

From a perusal of Mr Penton's Founding Affidavit in support of the Application For Condonation of the late filing of the appellant's Heads Of Argument, it is apparent that the Notice Of Set Down together with the record of the proceedings were served on the Johannesburg Justice Centre on the 11 December 2008 and the Heads of Argument were to be filed by the 2 December 2008.

(7)

It has taken the Director of Public Prosecutions 6 years and 2 months to set down the appeal from the date of the lodgment of the Notice Of Appeal.

(8)

The court is aware of the tremendous work load the office of the Director of Public Prosecutions is seized with. The work pressure experienced by that office, does not detract from the fact that it is an unsatisfactory state of affairs that the prosecution of an appeal, where the appellant is in custody, should take such an inordinate length of time before being set down.

(9)

In this matter the appellant was initially represented by Pitje and Lekabe Attorneys. It is not clear when their mandate was terminated nor when the Legal Aid Board commenced acting on behalf of the appellant.

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Irrespective of these factors, it is incumbent on the Director of Prosecutions to diligently and expeditiously prosecute all appeals, more so, where an appellant is not released on bail pending the determination of his or her appeal.

(10)

The Supreme Court of Appeal had occasion in the case of S v Heslop 2007 (1) SACR 461 to express its displeasure at the laxity and the unreasonable length of time it took the National Director of Prosecution's office to set down that relevant appeal. In the aforementioned judgment, the Supreme Court of Appeal cited in support of its injunction the case of S v Senatsi and Another 2006 (2) SACR (SCA) at para 11. The passage in para 11 is worth reiterating for emphasis:

'In the appeal before us Mr Van der Vyver for the State assured us that steps have now been taken in the DPP's office to ensure that appeals, especially those lodged by unrepresented accused, are not lost in the system. One can imagine the prejudice that would have occurred if the appeal by the two appellants had been upheld or sentences of less than the period they have already served had been imposed. The office of the DPP is urged to ensure that such delays do not occurred in the future. Such delays deny justice to the persons concerned by preventing a speedy disposal of their cases. Sadly, this is not the first time this has occurred. In S v Joshua this Court had to deal with a case in which there was a delay of some six years before the appeal was heard. Fortunately, the accused was out on bail in that case. Not so in the present matter. Such delays are to be avoided at all costs.'

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(11)

The injunction that the office of the Director of Prosecutions should expeditiously prosecute appeals is predicated on the potential prejudice to the appellant where such an appeal is upheld. It is intended to effectively minimize the period the appellant is to spend in custody awaiting the outcome of his appeal.

(12)

The failure by the Director of Prosecutions to act with precipitated haste in prosecuting an appeal such as...