S v Bopalamo (A818/05 , 818/05) [2006] ZAGPHC 49 (17 May 2006)

IN THE HIGH COURT OFSOUTH AFRICA(WITWATERSRANDLOCAL DIVISION)CASE N0:A818/05In the matter between:BOPALAMO, BRIANAppellantandTHE STATERespondent______________

IN THE HIGH COURT OF

SOUTH AFRICA

(

WITWATERSRAND

LOCAL DIVISION)

CASE N0:A818/05In the matter between:BOPALAMO, BRIANAppellantandTHE STATERespondent

CASE N0:

A

818/05

In the matter between:

BOPALAMO, BRIAN

Appellant

a

nd

THE STATE

Respondent

___________

__

_____

JUDGMENT

GOLDSTEIN J:

[1]This matter has an unusual history, the unfortunate result of which has been to delay inordinately the finalisation of the appellant’s appeal.

[1]

This matter has an unusual history, the unfortunate result of which has been to delay inordinately the finalisation of the appellant’s appeal.

[2] The appellant was convicted in this Court on 23 February 1996 by Schabort J, as he then was,and two assessors of murder and robbery with aggravating circumstances, and sentenced to 20 years’ imprisonmenton the first count, and 15 years’ imprisonment on the second, with 10 years of the latter sentence to run concurrently with the former, resulting in an effective sentence of 25 years’ imprisonment. By letter dated 19 July 1996 the appellant sought to “lodge an appeal”See p 187 of the record before us. All references in the footnotes hereafter are to the pages in such record.or apply “for appeal”186against his convictions and sentences.[3] On 17 September 1996 Schabort J inChambers made the following note in respect of the appellant’s request:“Certificate refused. No reasonable prospect of success on appeal.”In acting as he did the learned Judge clearly intended following the procedure previously applied in respect of prisoners seeking to appeal.[4] That procedure was laid down by section 305 of the Criminal Procedure Act 51 of 1977 (as amended) which read as follows:

[2] The appellant was convicted in this Court on 23 February 1996 by Schabort J, as he then was,

and two assessors of murder and robbery with aggravating circumstances, and sentenced to 20 years’ imprisonment

on the first count, and 15 years’ imprisonment on the second, with 10 years of the la

t

ter sentence to run concurrently with the former, resulting in an effective sentence of 25 years’ imprisonment. By letter dated 19 July 1996 the appellant sought to “lodge an appeal”

See p 187 of the record before us. All references in the footnotes hereafter are to the pages in such record.

or apply “for appeal”

186

against his convictions and sentences.

[3] On 17 September 1996 Schabort J in

C

hambers made the following note in respect of the appellant’s request:“

Certificate refused. No reasonable prospect of success on appeal.”

In acting as he did the learned Judge clearly intended following the procedure previously applied in respect of prisoners seeking to appeal.[4] That procedure was laid down by section 305 of the Criminal Procedure Act 51 of 1977 (as amended) which read as follows:

“Notwithstanding anything to the contrary in any law contained, no person who has been convictedby a lower court of an offence, shall be entitled to prosecute in person any proceedings for the review of the proceedings relating to such conviction unless a Judge of the Provincial or Local Division having jurisdiction has certified that there are reasonable grounds forreview.”

“

Notwithstanding anything to the contrary in any law contained, no person who has been convicted

by a lower court of an offence, shall be entitled to prosecute in person any proceedings for the review of the proceedings relating to such conviction unless a Judge of the Provincial or Local Division having jurisdiction has certified that there are reasonable grounds fo

r

review

.

”

This section, found to be unconstitutional inS v Ntuli1996(1) SACR 94(CC), andrepealed by section 1 of Act 76 of 1997,became invalid on 30 April 1997. The section was operative when Schabort J dealt with the matter but, with respect, the learned Judge erred inin effect applying the section because it applied only to convictions in the lower Courts and not to such in the High Court. It follows that the learned Judge had no jurisdiction to adjudicate on the grant or refusal of a certificate as hepurported to do, and that his ruling or order in regard thereto was a nullity.S v Absolom1989(3)SA 154(A) at 164 E–F.Cf.S v Ngema1999(1) SACR 218 (W).[5]The appellant thereafter directed a petition dated 3 June 1997 to the Supreme Court of Appeal asking for“Special leaveto Appeal”213. This elicited a letter from the Registrar of the Supreme Court of Appeal,dated 17 June 1997,seeking copies of the application for leave to appeal,and of the judgment refusing leave215. Thereafter,and on 12 September 1997,the Registrar of this Court sent the appellant’s application for leave to appeal and a copy of Schabort J’s letter refusing the certificate to the Registrar of the Supreme Court of Appeal. The latter Registrar cannot trace his file but has, according to an affidavit of the appellant to which I shall againrefer below, an independent recollection of what occurred: the petition was not

considered by the Supreme Court of Appeal since the Registrar was of the view that “as the Application for Leave to Appeal was not heard in opencourt, and was dealt with as a refusal of a Judge’s certificate to appeal, that noApplicationfor Leave to Appeal was heardor refused, and that the Petition was therefore premature.”230The appellant says that he “received a letter from the Registrar of the Supreme Court of Appeal wherein it was stated that (he) had submitted the Petitionincorrectly and that (he) should obtain legal advice how to do so.”229He says that he has lost the letter.[6] Thereafter attorneys apparently acting on behalf of the appellant filed with the Registrar of this Court on 4 May 2000 a document headed “Applicant’s Notice of Application for Leave to Appeal.”This document seeks leave to appeal from Schabort J,217–220andwas accompanied, it seems, byanotice ofmotion and supporting affidavit.221–239None of these documents appear to have been placed before Schabort J.[7] On 21 May 2001 the appellant wrote once again to the Registrar of the Supreme Court of Appeal advising what he had done and that he had received no response.That letter also elicited nothing.[8]On 7 July 2003 the appellant contacted the office of the Director of Public Prosecutionstelephonically. Thisresulted in a letter to him by the Office Manager of that office dated 10 July 2003 the body of which reads as follows:

This section, found to be unconstitutional in

S v Ntuli

1996(1) SACR 94(CC), and

repealed by section 1 of Act 76 of 1997,

became invalid on 30 April 1997. The section was operative when Schabort J dealt with the matter but, with respect, the learned Judge erred in

in effect applying the section because it applied only to convictions in the lower Courts and not to such in the High Court. It follows that the learned Judge had no jurisdiction to adjudicate on the grant or refusal of a certificate as he

purported to do, and that his ruling or order in regard thereto was a nullity.

S v Absolom

1989(3)

SA 154(A) at 164 E–F.

Cf.

S v Ngema

1999(1) SACR 218 (W).

[5]

The appellant thereafter directed a petition dated 3 June 1997 to the Supreme Court of Appeal asking for

“S

pecial leave

to Appeal”

213

. This elicited a letter from the Registrar of the Supreme Court of Appeal

,

dated 17 June 1997

seeking copies of the application for leave to appeal

and of the judgment refusing leave

215

. Thereafter

and on 12 September 1997

the Registrar of this Court sent the appellant’s application for leave to appeal and a copy of Schabort J’s letter refusing the certificate to the Registrar of the Supreme Court of Appeal. The la

ter Registrar cannot trace his file but has, according to an affidavit of the appellant to which I shall again

refer below, an independent recollection of what occurred: the petition was not considered by the Supreme Court of Appeal since the Registrar was of the view that “as the Application for Leave to Appeal was not heard in open

c

ourt, and was dealt with as a refusal of a Judge’s certificate to appeal, that no

pplication

for Leave to Appeal was heard

or refused, and that the Petition was therefore premature.”

230

The appellant says that he “received a letter from the Registrar of the Supreme Court of Appeal wherein it was stated that (he) had submitted the Petition

incorrectly and that (he) should obtain legal advice how to do so

229

He says that he has lost the letter.[6] Thereafter attorneys apparently acting on behalf of the appellant filed with the Registrar of this Court on 4 May 2000 a document headed “Applicant’s Notice of Application for Leave to Appeal.”

This document seeks leave to appeal from Schabort J

217–220

and

was accompanied, it seems, by

n

otice of

m

otion and supporting affidavit.

221–239

None of these documents appear to have been placed before Schabort J.[7] On 21 May 2001 the appellant wrote once again to the Registrar of the Supreme Court of Appeal advising what he had done and that he had received no response.

That letter also elicited nothing.

[8]

On 7 July 2003 the appellant contacted the office of the Director of Public Prosecutions

telephonically

. Th

is

resulted in a letter to him by the Office Manager of that office dated 10 July 2003 the body of which reads as follows:

“Your leave to appeal, your telephone enquiries on Monday 7 July 2003 refers.As you are already aware you application for leave to appeal has been refused by the trial Judge on the 17 July 1996, see attached a copy of an order from the office of the Registrar.You then petitionedto the Supreme Court ofappealto grant you a further appeal.The result of the petition is not known to this office. I suggested that you enquire from the Supreme Court of Appeal as to the result of your petition, see attached copy of acknowledgement of yourpetitionapplication. You can address your enquiries to:The Registrar of Supreme Court of AppealP O Box258BLOEMFONTEIN9300”

Your leave to appeal

, your telephone enquiries on Monday 7 July 2003 refers.

As you are already aware you application for leave to appeal has been refused by the trial Judge on the 17 July 1996, see attached a copy of an order from the office of the Registrar.

You then petition

ed

to the Supreme Court of

ppeal

to grant you a further appeal.

T

he result of the petition is not known to this office. I suggested that you enquire from the Supreme Court of Appeal as to the result of your petition, see attached copy of acknowledgement of your

petition

application. You can address your enquiries to:

The Registrar of Supreme Court of Appeal

P O Box

258

BLOEMFONTEIN

9300”

[9]Thereafter,bynotice ofmotion dated 3 August 2003,and citing the Director of Public Prosecutions as first respondent, and the Minister of Justice as second240–1, the applicant submitted that another court may differfrom Schabort J.The relief sought in thenotice ofmotion relates only to costs and dispensing with the Rules of Court.[10]Theapplication so launchedcame before Willis J on 28 November 2003, apparently with nonotice ofset-downhaving been served on either of the respondents cited. The appellant appeared in person and the transcript of at least part of what occurred264is included in our record. Willis Jfirst expressed theintentionof postponing the matter for service on the Director of Public Prosecutions. Thereafter, however, hewenton to grant the appellant condonation of his late application for leave to appeal and then saidthat “the applicant is granted leave to appeal.” And so the matter has been placed before this Full Court of three Judges.[11]Section 316(2)(a) of theCriminal Procedure Act providesthat anapplication forleave toappeal “must be made to thejudge whose conviction, sentence or order is the subject of the prospective appeal ….:Provided that if –(i)the trialjudge is not available; or(ii) in the case of a conviction before acircuitcourt the saidcourt is not in sitting,The application may be made to any otherjudge of theHigh Court concerned.”The trial Judge,Schabort J,was available to hear theleave toappeal, and the matter did not involve acircuitcourt. It follows that Willis J had no jurisdiction to hearthe application for leave to appealand that his order in regard theretoin a nullity.

[9]

Thereafter

by

otion dated 3 August 2003

and citing the Director of Public Prosecutions as first respondent, and the Minister of Justice as second

240–1

, the applicant submitted that another court may differ

from Schabort J.

he relief sought in the

otion relates only to costs and dispensing with the Rules of Court.

[10]

The

application so launched

came before Willis J on 28 November 2003, apparently with no

s

et-down

having been served on either of the respondents cited. The appellant appeared in person and the transcript of at least part of what occurred

264

is included in our record. Willis J

first expressed the

intention

of postponing the matter for service on the Director of Public Prosecutions. Thereafter, however, he

went

on to grant the appellant condonation of his late application for leave to appeal and then sa

id

that “the applicant is granted leave to appeal.” And so the matter has been placed before this Full Court of three Judges.

[11]

Section 316(2)

(a) of theCriminal Procedure Act provide

Criminal Procedure Act provide

that an

pplication for

l

eave to

ppeal “must be made to the

j

udge whose conviction, sentence or order is the subject of the prospective appeal ….

:Provided that if –(

i

)

the trial

udge is not available; or(

ii

) in the case of a conviction before a

ircuit

ourt the said

ourt is not in sitting,The application may be made to any other

udge of the

H

igh Court concerned

”The trial Judge

Schabort J

was available to hear the

ppeal, and the matter did not involve a

ourt. It follows that Willis J had no jurisdiction to hear

the application for leave to appeal

and that his order in regard thereto

in a nullity

[12] This is a most unfortunate case in which our system of the administration of justice has sadly failed the appellant.His counsel requests that we condone any lateness in his application for leave to appeal.TheState does not oppose this request, and wisely, since where the system has functioned so poorly we ought to be astute to assist as far as we are able to do so.

[12] This is a most unfortunate case in which our system of the administration of justice has sadly failed the appellant.

His counsel requests that we condone any lateness in his application for leave to appeal.

S

tate does not oppose this request, and wisely, since where the system has functioned so poorly we ought to be astute to assist as far as we are able to do so.

[13] In the result I make the following order:

[1

3

] In the result I make the following order:

1. The refusal of certificate of Schabort J of 17 September 1996 is declared null and void.

2. The order of Willis J of 28 November 2003 is declared null and void.

3. The appellant’s application for leave to appeal against hisconvictions and sentences of 23 February 1996 is referred in terms ofsection 316(2) (a)Act 51 of 1977 for adjudication in open Court to SchabortJ, or if he is not available to hear such application, to anotherJudge of this Division.

3. The appellant’s application for leave to appeal against his

convictions and sentences of 23 February 1996 is referred in terms of

section 316(2) (a)

section 316

Act 51 of 1977 for adjudication in open Court to Schabort

J, or if he is not available to hear such application, to another

Judge of this Division.

4. The lateness of the application for leave to appeal is condoned.

________E L GOLDSTEIN

________

E L GOLDSTEIN

JUDGE OF THE HIGH COURT

I agree

V

KHAMPEPE

I agree________RSMATHOPO

R

MATHOPO

For appellant:

J

Nell

For

first

respondent:

L

M

Loots

Date of hearing:

17 May 2006

Date of Judgment:

17 May 2006