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SAFLII Note: Certain personal/private details of parties or witnesses have been redacted from this document in compliance with the law and SAFLII Policy

Republic of South Africa

IN THE HIGH COURT OF SOUTH AFRICA

(WESTERN CAPE DIVISION, CAPE TOWN)

Case No. 11054/2019[1]

Before: The Hon. Mr Justice Binns-Ward

and

The Hon. Ms Justice Cloete

Hearing: 16 August 2019

Judgment: 27 August 2019

In the matter between:

BENEDICT ODHIAMBO                                                                                                   Applicant

and

REGIONAL COURT MAGISTRATE, STELLENBOSCH                                  First Respondent

DIRECTOR OF PUBLIC PROSECUTIONS,

WESTERN CAPE                                                                                                 Second Respondent

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:

1. That the conviction and sentence be set aside;

2. That the criminal proceedings be directed to recommence de novo before a different magistrate; and

3. 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 the 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 contingently 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. [2]  In particular, it engages s 22(1)(c), 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 41 E-F, in a passage translated from the Afrikaans[3] by Nugent JA in Gqwetha v Transkei Development Corporations Ltd and Others [2005] ZASCA 51; [2006] 3 All SA 245 (SCA) at 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.’[4]

[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.

[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 kidnapping 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, has told this court about your plea explanation on these two charges?

ACCUSED:  Yes, Your Worship.

COURT:  Do you now admit and do you now confirm what he said there on your behalf as correct?

ACCUSED:  Yes, according to my discussions with him it’s correct.

COURT:  Okay, good then, at the suggestion of your attorney, Mr Van Rooyen, the admissions that you have made through him regarding the plea explanation about the identity of the complainant, that you had sex with her with her consent are noted by this court in terms of Section 220 Act 51 of 1977. Do you understand?

ACCUSED:  I will not admit that I had sex with her. My attorney said that there was partial penetration on her, not having sex.

COURT:  Yes, that admission that you had partial penetration with her with her consent is noted by the court as your admission in terms of Section 220. Do you understand?

ACCUSED:  Yes, Your Worship.

COURT: H’m?

ACCUSED:  Sorry, I didn’t get you?

COURT: Do you understand?

ACCUSED:  Yes, Your Worship.

COURT:  Good. Then you may be seated.

ACCUSED:  Thanks.’

[12] The DNA report, handed in by agreement, and admitted, reflected that the only DNA found on the complaint’s vulva and vagina was her own. However there were traces of the applicant’s DNA on both her panties and jeans. On her jeans, at least 3 males (including the applicant’s) contributed to the DNA mixture. Excluded was the DNA of the applicant’s friend and housemate, who had earlier in the evening introduced himself to the complainant as ‘Stefan’ (the latter was in fact a manager at the Happy Oak) but whose real name is Zen Garland.

[13] Also handed in by agreement, and admitted, was the Form J88 report completed by Dr Lizette Albertse who examined the complainant at 4.30pm on 9 May 2015. The injuries noted were a ‘love bite’ on the complainant’s neck, a scrape on her right knee, bruising to her left shoulder, left elbow and right buttock, a tear to the posterior of the fossa navicularis, and two fresh tears of the hymen accompanied by swelling.  Dr Albertse also noted redness on the inner side of the complainant’s legs.  Her conclusion, confirmed in her subsequent testimony, was that there were signs of vaginal penetration that had occurred within the preceding 24 hours.

[14] The other relevant facts which emerged from the evidence were as follows.  On the night in question the complainant, accompanied by her blind boyfriend and a male friend were eating and drinking at the Happy Oak. At around midnight they moved to the upstairs bar area where the applicant was the on duty barman. Garland was standing at the bar and introduced himself to them as Stefan. They recognised him because he also worked there as a bartender, although he was not on duty at the time.

[15] Garland struck up a conversation with them, and the complainant bought a round of Tequila shots (including for the applicant). After she returned from paying for the shots, Garland offered her another. As she took it, Garland knocked it over and the applicant offered her a free replacement. This time he made it – a ‘Cosmic Cloud’ cocktail – behind a set of bottles and she was unable to watch him. Within a few minutes after drinking the Cosmic Cloud she became confused and unable to focus on what Garland was saying to her.

[16] At that point the complainant’s boyfriend and male friend left to use the bathroom. The last she remembered before blacking out some 10 to 15 minutes after drinking the Cosmic Cloud was watching them leave the bar to go to the bathroom.

[17] Her next recollection was waking up in a bedroom 4 to 5 hours later wearing only her underwear. The applicant was lying on top of her, completely naked, kissing her chest and stomach. She asked him to stop but he persisted, telling her that he wanted to kiss her vagina and began to remove her underwear. Ignoring her protests, he forced her to touch his penis.

[18] She managed to elbow him and push herself off the bed onto the floor, where she saw her jeans. She tried to stand but could not balance, and fell back onto the floor where she pulled on her jeans. She could not find her shirt (the applicant eventually told her that it was in the bathroom; he had washed it because she had vomited onto it). She also could not find her spectacles and struggled to see. She attempted to enlist Garland’s assistance but he was hostile towards her and chased her out of his room. The applicant then tried to lure her back into his bedroom but she refused.

[19] Sitting on the couch in the lounge, she telephoned her friend T P for help. She noticed that her handbag and shoes were next to the couch. The shoelaces had been removed. She got up and tried to unlock the front door. At that point the applicant came out of his bedroom, angrily asking her why she was trying to leave.

[20] She persuaded him to unlock the door on the pretext of wanting some fresh air. She remembered the applicant thereafter accompanying her to the Caltex garage where she had arranged to meet T. Once they arrived, she called T and the applicant walked off, leaving her alone until T arrived.

[21] She briefly explained to T that she thought her drink had been spiked, she had woken up with the accused naked on top of her, that her entire body hurt, and it was possible that she had been raped. T told her that she needed to sleep first and he would thereafter take her to the police station and to a clinic for HIV medication.

[22] After sleeping for a while she called her mother, who arranged for a family friend(s) to take her to the police station. T accompanied them. After being turned away by the police who told her that ‘…there was no point in opening a case, nothing would come of it…’, she was taken by the family friend(s) and T to the local Mediclinic where she was examined by Dr Albertse.

[23] Mr Phatlane described the complainant when he fetched her at the garage as ‘…a mess. Her hair was ruffled and messed up and she was holding her shoes in her hand. Those were dirty. She was cold. She did not have her glasses. She seemed dazed, confused… she smelled as if she had been vomiting… and I noticed that her jersey was wet…’. He explained how the complainant broke down when reporting to him what had happened. When the complainant had first telephoned him she was panicking: ‘…I had never heard her like that before. She… was whispering… very fast… as if she didn’t want someone to hear her telling me this…’.

[24] Constable Matthews interviewed the applicant and took warning statements from him on two occasions. A few days after the first, which was exculpatory, the applicant contacted him, wanting to tell him ‘exactly what happened’. In the second interview the applicant told Matthews that he and the complainant had oral sex at the Happy Oak, and that he later wanted to have sex with her while she was lying on his bed with him on top of her. It was only at this point that for the first time she refused because she wanted to have sex instead with Garland.

[25] Needless to say, this was denied by the complainant, but in any event the applicant’s later version to Matthews was self-evidently highly improbable given what, according to him, had occurred at the Happy Oak earlier that evening. In addition the applicant, through Van Rooyen, confirmed during Matthews’ cross-examination that the ‘sexual activities’ between himself and the complainant was information that he himself volunteered.

[26] In his application for leave to appeal it was noted, without any qualification, that ‘[t]he Applicant, by way of an admission in terms of Section 220 of the Criminal Code, indicates (sic) that he had “a partial penetration” of the Complainant’s vagina during their sexual interlude’.  It was pointed out that the applicant had been convicted ‘on the basis of his admission of “partial penetration” and on the Complainant’s evidence of amnesia, the Court finding that the Applicant having sex with the [complainant] in her state amounted to rape’.  The application for leave stated further that ‘[t]he legal representative for the Applicant put it to the Complainant that in her time with the Applicant in the flat she was at all times a voluntary participant in what occurred there, especially in their sexual relations with each other’. 

[27] It was emphasised that the state’s case depended on the evidence of a single witness.  It was argued that because no medical or scientific evidence had been adduced to explain how the complainant came to suffer her memory loss and no evidence had been led that the applicant was aware that the complainant ‘was unable to function properly and cognitively’, ‘the composite and holistic set of evidence placed before the Court could give rise to the inference that the whole story of memory loss by the Complainant was a ruse to cover up the embarrassing aspect of disappearing with a stranger from a pub whilst in the company of her boyfriend’.  The notice of application for leave to appeal advanced the contention that ‘[s]ignificant doubts exist as to the veracity of the Complainant’s version, whilst the Section 220 admission made by the Applicant was made in a vacuum with no further explanation of the surrounding circumstances, i.e. the state of sobriety of the complainant, at what point in time it occurred and the parties’ attitude to the penetration, voluntary or not.’ 

[28] Notably, notwithstanding the reference in the applicant’s application for leave to appeal to his admission in terms of s 220, there was no suggestion at that stage that it was incorrectly noted, or that it had been made contrary to instruction.  On the contrary, and consistently with the manner in which his case had been conducted at the trial, the application was framed on the basis that it had not been proved beyond reasonable doubt that the allegedly relatively limited sexual interaction between the applicant and the complainant that he had admitted to had not been consensual.

[29] The supporting affidavits in the review application state that the applicant was represented by attorney Ronald Rickerts during the trial, or at least in the immediate lead up to the hearing in the criminal court.  Rickerts explained that due to his appointment as a magistrate he was unable to pursue the matter and ‘duly handed [it] over to Advocate E.E. van Rooyen of the Cape Bar, who held himself out to be an expert in criminal matters, especially matters pertaining to sexual offences’.  Rickerts does not explain precisely what he means by ‘handing over’ the matter.  If van Rooyen were indeed an advocate and a member of the Cape Bar, as related, he would require to be instructed by an attorney.  It is curious therefore that Rickerts does not state, as might be expected, that he had briefed van Rooyen, or that he had arranged for some other attorney to do so.  If he did indeed brief van Rooyen at the Cape Bar one would expect at the least that he should have been able to state at which address van Rooyen’s chambers at that bar had been.   He also does not explain the basis for his claim that van Rooyen had held himself out as an expert practitioner in criminal matters. 

[30] Van Rooyen was in point of fact not placed on record as an advocate at the commencement of the trial.  If he had been, the court would ordinarily record by whom he had been instructed.  In the applicant’s petition for leave to appeal, van Rooyen was referred to by Mr Mark Meyer of N. Allen Attorneys as an attorney.  And in the principal supporting affidavit in the current proceedings the applicant’s current attorney of record states that he had ascertained ‘that Advocate E.E. Van Rooyen had been employed by Bredenhann Attorneys in Bellville in approximately 2016, but upon contacting them telephonically they advised that Advocate E.E. Van Rooyen had left them a long time ago’.  An advocate would not be employed by a firm of attorneys.

[31] The magistrate’s notes, which form part of the rule 53 record before this court, indicate that Mr van Rooyen first appeared for the applicant on 9 March 2016, when he is recorded as having been ‘standing in for Mr Riekerts (sic)’.  On that occasion Mr van Rooyen is recorded as having informed the court as follows: ‘I will be an attorney of record for accused from now on on behalf of Mr Riekerts (sic) Attorneys.  I have obtained further instructions and consulted with accused and am ready for plea & trial.  I am fully financially and factually instructed to proceed with the matter and we are trial ready.  He [the applicant] is going to plead not guilty to the charges.’  The notes also indicate that on that occasion van Rooyen placed on record, well in advance of the actual commencement of the trial, that the documentary evidence in the forensic (DNA) and medical reports would not be disputed.  The applicant’s trial commenced in December 2016.

[32] Rickerts avers in his supporting affidavit in the current proceedings that he was ‘present at most of the Applicant’s Court proceedings and I had full instructions from the Applicant herein’.  He stated that the applicant had given instructions to him and to van Rooyen ‘that he had not had any penetration with the complainant’. He continued ‘I was informed that Advocate Van Rooyen made an admission to penetration and the Applicant was shocked by this.  I was however reassured by Advocate Van Rooyen that he was an expert in these matters and I conveyed same to the Applicant.’  Rickerts does not indicate in his affidavit when the applicant allegedly made the intimation to him that van Rooyen had caused a formal admission regarding penetration contrary to instructions, nor does he explain how he (or the applicant) could possibly have been satisfied in the circumstances by van Rooyen’s alleged reassurance that he was an expert.  The implication, however, must be that Rickerts was informed about the admission before the applicant was convicted because one cannot understand otherwise how he (and apparently also the applicant) could have been reassured by van Rooyen’s explanation.  Neither Rickerts nor the applicant explain how it came about that van Rooyen was replaced as the applicant’s legal representative after the applicant’s conviction, or why the complaint about the admission allegedly made contrary to the applicant’s instructions was not raised then.

[33] Rickerts did not offer his consultation notes in corroboration of what he says were the instructions taken from the applicant, nor did he give any indication why they were not available.  One cannot imagine that attorney-client privilege would be an issue in this regard, as the applicant would surely have every reason to waive such privilege in the circumstances.  That the waiver of attorney-client privilege is a question to be considered by any convicted person seeking to impugn his or her conviction on the grounds of inadequate or incompetent legal representation is vouched in the law reports; see e.g. S v Tandwa 2008 (1) SACR 613 (SCA), at paras. 19-20 and S v Mponda [2004] 4 All SA 229 (C), 2007 (2) SACR 245 (C) at paras. 41-42.

[34] The application for leave to appeal was submitted under the name of Ronald Rickerts Attorney, with the given address of ‘c/o N. Allen Attorneys’.  Rickerts does not explain how the applicant’s application for leave to appeal came to be submitted under the name of his firm after he had ‘handed over’ the case to van Rooyen many months earlier.  There is no indication in the papers of the identity of the individual who framed the application for leave to appeal, or as to the nature and content of the instructions on which that was done. 

[35] The applicant was represented at the hearing of the application for leave to appeal by a certain Mr Fisher.  Fisher had first placed himself on record at the stage of the sentence proceedings.  He announced at the commencement of those proceedings that he had ‘replaced Mr Van Rooyen my predecessor in this matter upon request of the firm involved’.  He further stated in that regard ‘I do not know the reasons for that but be that as it may I am here’.  It was apparent that Fisher had been instructed only that day.  Fisher stated on record, in answer to a question by the magistrate, that he had been ‘briefed now by Mr Rickerts’.  He said he was a semi-retired practitioner and had been approached (presumably by Mr Rickerts) to take on the matter four days earlier.  Fisher’s intimation to the court that he had been briefed by Rickerts suggests that Rickerts, notwithstanding his apparent appointment as a magistrate many months earlier when van Rooyen came into the matter, remained closely involved with the case.  That inference is indeed supported by Rickerts’ averment in the current proceedings that he ‘was present at most of the Applicant’s Court proceedings’. 

[36] If Fisher’s point of introduction to the case was Rickerts, as appears on the record to have been the case, it beggars belief that Rickerts would not have informed him about the admission made against instructions if that had indeed been an issue at that stage.  The record indicates that Fisher consulted with the applicant before sentence proceedings commenced.  It is apparent from his address to the trial court that he was fully astute to the crucial nature of the admission made by the applicant in relation to the conviction.  He expressly referred to it in his submissions on sentence.  It seems most unlikely that at that stage the applicant would not have mentioned that a crucial admission had been made contrary to his instructions, if that had been his view at that time.  The unlikelihood is highlighted by the fact that Fisher gave notice immediately after the magistrate had completed his sentence judgment that there would be an application for leave to appeal against the conviction.  It is most improbable that he would have done that without instructions from the applicant on the merits of the conviction.  The applicant’s failure in these proceedings to deal with these considerations in the context of explaining the delay is unsatisfactory to say the least.  It also bears adversely on the merits of his review challenge.

[37] What does appear from the record is that the applicant touched Mr Fisher’s back at the end of the latter’s address to the court on sentence causing him to ask the court if he might pause to take an instruction from the applicant.  This was a further indication that the applicant was no shrinking violet[5] during the hearing.

[38] There is an indication during Mr Fisher’s subsequent address to the court in support of the application for leave to appeal that the applicant may have been unhappy about the formal admission concerning partial penetration.  The record reads as follows in that regard:

MR FISHER: But the matter became somewhat, again for want of a better word, bedevilled and for the sake of the accused is when his legal representative for better or worse in his own wisdom made an admission in terms of 220 of the Criminal Procedure Act that there had and this is done in a sort of a vacuum, I refer to it in my written submissions to the Court, that there had been partial penetration of the complainant, of course vaginally, one accepts, by the accused.  When that partial penetration occurred was not mentioned.  How it occurred was not mentioned.  The  - sorry, just a moment may I just take an instruction Your Worship?

COURT: Yes, proceed.

MR FISHER: Sorry, I just informed him Your Worship that at this stage of the proceedings there cannot be submissions or whatever.  We’re kind of tied to the record as it were Your Worship.

COURT: Okay.

But there is nothing in the evidence before us explaining the nature of the instructions that the applicant gave to Mr Fisher at that stage.  Van Rooyen may have disappeared without trace,[6] but one would have expected evidence to have been obtained from Fisher if the applicant’s case was that he had instructed the latter that his defence had been conducted inconsistently with his instructions.  Without explanation, nothing in the passage quoted above detracts from the effect of the applicant’s apparent confirmation of the admission at the commencement of his trial.

[39] The applicant’s petition to the High Court for leave to appeal, which was submitted on his behalf by one Mark Meyer of N. Allen Attorneys, referred to the applicant’s version as put to the complainant in cross-examination, namely ‘in essence … that there was flirtatious behaviour between the Complainant and Stefan and that when the boyfriend of the Complainant, who is visually impaired, and Mr Phalane (sic) went to the men’s toilet the Complainant and Stefan slipped away.  Your Petitioner remained on duty and when he finished his shift after midnight he met the Complainant and Stefan outside the building in which the bar was housed and the trio then went to their [i.e Stefan and the applicant’s] flat where during the course of the night the Complainant and your petitioner got intimate until he assisted her in being collected by Mr Phalane’.  It also recorded (twice) that the applicant ‘also made the formal admission that there had been sexual relations between him and the Complainant to the extent that he “partially” penetrated her’.  Again, there was no suggestion in the petition that any irregularity had attended the applicant’s admission at the trial that he had achieved a partial sexual penetration of the complainant.

[40] At the end of the day the applicant’s conduct in failing to raise or complain about the conduct of his case in the criminal trial contrary to his instructions is difficult to understand, and remains unexplained.  It falls to be contrasted with the example afforded in S v Tandwa supra, where the aggrieved convicted party raised his complaint that his legal representative had conducted his defence inconsistently with instructions when, the legal practitioner concerned having by that stage withdrawn, he was called upon to address the court in mitigation.  He then did so again in his application for leave to appeal.  Notwithstanding the much more timeous advancement of the complaint in Tandwa, it was rejected on appeal because of various factors in the case that made it implausible.

[41] Another point of correspondence between the current case and that in Tandwa is that the applicant, like the appellant in Tandwa, is not an uneducated and unsophisticated person who might not readily appreciate and timeously object to the incompetent or misleading presentation of his case.  According to the record, and confirmed from the bar by his counsel during argument before us, the applicant, who is fluent in English (the language in which the trial was conducted), holds a doctorate in forestry from the University of Stellenbosch, and at the time of his trial was employed by a forestry business in Johannesburg as a senior manager.  He had been working as a barman to earn funds to pay towards his studies at the time of the commission of the offence in respect of which he was convicted.

[42] The applicant’s current attorney, who, as mentioned, made the founding affidavit in the current proceedings, averred that he was approached on 21 November 2018 by the fiancée of the applicant and a friend and asked to consider the possibility of a review application.  There are no affidavits by either of those persons explaining the circumstances and timing of their approach to the attorney.  The attorney provided them with a (presumably positive) opinion, but it was only on 23 January 2019 that instructions were given to institute the review application.  The two-month delay between November and January was not explained; nor was the subsequent further delay of more than two months between then and the institution of review proceedings on 9 April 2019, 16 months after his conviction.

[43] There is no doubting in the circumstances that the application for review was instituted with unreasonable delay.  The basis upon which the application is founded was known to the applicant at the time the trial was concluded, and he should have advanced his complaint at the latest when he applied for leave to appeal.  To the extent that he relied on material not apparent on the record when he challenged his conviction, he should have brought the review so that it could be heard together with, or before, any appeal.  The delay has not been adequately, or plausibly explained. In the circumstances, we would not be disposed to entertain the review unless it were apparent that not to do so would be to turn a blind eye to a vitiating miscarriage of justice.

[44] The applicant’s counsel submitted that the applicant had been entitled to pursue the route of appeal and could not be faulted for having done that to the stage that he did before turning to his remedy in review.  The argument is untenable. 

[45] Whilst it is undeniable that appeal and review are discrete remedies and that the noting and prosecution of an appeal does not, in principle, exclude the institution of a subsequent application for review if grounds for such can be made out, litigation is not a game and a plausible explanation would be required why the alternative remedies were pursued consecutively in that manner.  Ordinarily, when an appellate court becomes aware that the impugned decision is susceptible to challenge on review it will defer deciding any appeal until the review is disposed of.  The reason is obvious.  A hearing on appeal proceeds on the basis of the legal validity of the process in which the impugned decision was made.  If the decision impugned on appeal were liable to vitiation on review on the grounds of a gross and material irregularity in the process, however, there would nothing left for an appellate court to validly engage with on appeal, for an appeal in the relevant sense is a rehearing of a case that has been effectively heard and decided at first instance.

[46] In support of his argument, the applicant’s counsel referred us to the judgment of the appeal court in De Villiers v The State & another [2016] ZASCA 38 (24 March 2016).  The judgment is of no assistance to the applicant’s case in our view. 

[47] The judgment in the De Villiers case was in an appeal to the Supreme Court of Appeal against a decision of a division of the High Court to refuse a review application.[7]  One of the grounds upon which the High Court had dismissed the review application was the judges’ apprehension that there was a body of authority[8] that precluded a court interfering with a decision on review if the case had already been finally decided on appeal.  All that the appeal court’s judgment held in the respect relevant for counsel’s argument was that there is in point of fact no absolute bar against review proceedings being entertained if they are instituted only after appeal procedures in respect of the matter in issue had been exhausted.  The judgment emphasises, however, that in considering whether a review application should be entertained each case must be considered on its own facts.  It says nothing that detracts from the well established principle that review challenges must be pursued without unreasonable delay. 

[48] The judgment in De Villiers did recognise, however, that pursuing appeal procedures to the exclusion of an available review remedy was on the facts of that case germane to any consideration whether the applicant had delayed unreasonably; it described the two aspects of the case as ‘interlinked’.[9]  Paragraph 14 of the judgment proceeds as follows:

‘…. It is trite that a review application must be brought within a reasonable time. While it is so that there has been a long delay here, given the outcome of this appeal I am prepared to accept, as was contended on behalf of the appellant, that the delay was largely caused by the change of the appellant’s legal team and by the bringing of the applications for leave to appeal against conviction. As far as the latter is concerned, I am of the view that the appellant had not, on the facts of this case, been precluded from bringing a review application after his unsuccessful pursuit of leave to appeal against his conviction. It is not as if he is seeking the proverbial second bite at the cherry. Or, in civil law parlance, it cannot be said that the matter is res judicata.’

[49] Accordingly, in that case, without saying so expressly, the appeal court was prepared to accept that what it described as ‘a long delay’ had been condonable for the reasons set out in the quoted paragraph.  It appears to us that it did so more by way of making an assumption in the appellant’s favour ex hypothesi, rather than a finding, because it proceeded to find that the court of first instance had correctly held that the substantive grounds for the review had not been established, and the appeal therefore could not on any approach be upheld.[10]  In the current matter, by contrast, there is no explanation at all why the applicant’s complaint that his case was conducted inconsistently with his instructions was first ventilated so late in the day. 

[50] The judgment in De Villiers most certainly does not stand in support of any notion that an accused person is entitled to sit quietly by when his case is not being conducted by his legal representatives in accordance with his instructions, and permitted then to complain only later when the case is decided adversely to his interest.  On the contrary, at para. 19, Majiedt JA, with reference to R v Matonsi 1958 (2) SA 450 (A) at 457E-F and 458A-B and S v Louw [1990] ZASCA 43; 1990 (3) SA 116 (A) at 124G-H, stated:

‘It is axiomatic that an accused person’s constitutional right to representation by a legal practitioner would be rendered meaningless by incompetent representation or, as is alleged in this case, a complete failure to execute the accused’s mandate and instead compelling the accused to act against his or her will in a criminal trial.  It is equally well established that a legal representative never assumes total control of a case, to the complete exclusion of the accused. An accused person always retains a measure of control over his or her case and, to that end, furnishes the legal representatives with instructions. As Van Blerk [A]JA expressed, it in a separate concurring judgment, in R v Matonsi: ‘. . . die klient dra nie volkome seggenskap oor sy saak onherroeplik aan sy advokaat oor nie’.  While the legal representative assumes control over the conduct of the case, that control is always confined to the parameters of the client’s instructions. The other side of the coin is that, in the event of an irresolvable conflict between the execution of a client’s mandate and the legal representative’s control of the case, the legal representative must withdraw or the client must terminate his or her mandate where such an impasse arises. An accused person cannot simply remain supine until after conviction.’  (Footnotes omitted.)

[51] Notwithstanding the unreasonable delay that has attended the institution of the review proceedings and the absence of any acceptable explanation for it, we should 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 by Mr van Rooyen.  For the reasons that follow we are not persuaded that that was the case.

[52] We do not accept the allegation that the recordal of the admission by the applicant that partial penetration had occurred was irregular or inconsistent with the applicant’s instructions.  The record shows that the admission was made in the context of the plea explanation given on the applicant’s behalf in terms of s 115 of the Criminal Procedure Act.  It was recorded as an admission in terms of s 220 as provided for in terms of s 115(2)(b) and (3).[11]

[53] The magistrate had admonished the applicant before his attorney gave the plea explanation to listen to it carefully and to be aware, as he would be asked to confirm its content, that he should speak up and point out if he did not agree with it in any respect.  After the plea explanation had been given the magistrate asked the applicant to confirm what he understood to be essence of it, namely an admission that there had been sexual intercourse with the complainant, but with her consent.  The applicant was quick to intervene to point out that (full) sexual intercourse had not been admitted, only partial penetration.  We are unable to accept that the applicant would not also have pointed out that any notion that there had been even partial penetration was inconsistent with his instructions if that had indeed been the case.

[54] It is 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 his or her instructions were not to that effect.  In the current matter it would have been apparent to the applicant and his legal advisor that the applicant had some explaining to do.  They were aware many months before the commencement of the trial that the complainant’s evidence against the applicant was corroborated by forensic evidence.  That evidence bore out that the medical examination of the complainant showed that she had had sexual intercourse during the 24 hours preceding the examination and the objective signs were that it had probably been non-consensual.  In addition, traces of material had been found on the complainant’s panties and jeans that matched up with the applicant’s DNA.  The forensic evidence also suggested that two other men might have been sexually intimate with the complainant on the night in question.  The applicant was bound in the circumstances to give some explanation of how his DNA came to be identified on the complainant’s undergarments.  If it was not on account of some consensual intimate contact (as the version placed on record by his attorney indicated), what was it?  What then were the instructions that the applicant gave to his attorney, if they were inconsistent with what was communicated to the trial court?  He was bound to disclose them if anything is to be made of his allegation that he was incompetently represented.  But he has not.

[55] The probability that he did indeed instruct his attorney that there had been partial penetration is strengthened by the fact that such an event fits comfortably with the version of events that he gave to Constable Matthews, in which he admitted that he had been trying to have sexual intercourse with the complainant, apparently under the misapprehension that she was a consenting partner, but had desisted when she had asked him to stop.  This makes it even more unlikely than ever that the admission was something the attorney would have plucked out of nowhere.

[56] We have already dealt with the inadequacy and implausibility of the evidence of Rickerts in respect of the admission having been made against instructions.[12]

[57] To succeed with his contention that the making of the admission exemplified his attorney’s incompetence, the applicant would have to prove on a balance of probability that the admission was inconsistent with his instructions.  For the reasons we have given we do not consider that he has succeeded in doing so.

[58] If, as we consider was probably the case, the applicant did instruct his attorney that there had been partial penetration, there was nothing incompetent in the attorney’s decision to incorporate the statement in the plea explanation.  As we have recorded, the attorney would have been astute at the commencement of the trial to the fact that there were a number of features in the state case that would require an explanation from the applicant.  In that context he could quite competently have considered that it would better serve the applicant’s interests to make certain admissions upfront, thereby avoiding any insinuation by the state later that any explanation forthcoming only when the state had already led its evidence had been tailored to meet the state’s case.  The attorney would also have appreciated that he would be unable to adduce evidence in the defence case that was inconsistent with his instructions that partial penetration had occurred, and that in the circumstances of the features objectively establishing a degree of intimate contact between the applicant and the complainant, no point would be served by not disclosing the fact when the applicant’s defence was that the contact was apparently consensual.

[59] Moreover, the record bears out that Mr van Rooyen did not summarily close the defence case without calling the applicant to give evidence, as one might be forgiven for believing if one read only the supporting papers in the review application.  The record shows that, following upon the unsuccessful application for the applicant’s discharge at the close of the state’s case, van Rooyen asked for and was given an adjournment to consult with the applicant on what he termed ‘the next step to follow’.  He thereafter reported that the decision to close the applicant’s case without calling any evidence had been made after ‘careful deliberation’.  The applicant has not disclosed the content of the consultation that preceded the decision to close his case. 

[60] As the Constitutional Court confirmed in S v Okah [2018] ZACC 3, 2018 (1) SACR 492 (CC), 2018 (4) BCLR 456 at para. 70, an accused person is bound by the decisions of his legal representative, taken in his presence, ‘unless he can show that the incompetence of his counsel vitiated the fairness of his trial’. 

[61] The evidence in this application contains nothing to substantiate the allegation that Mr van Rooyen had inadequate knowledge of sexual offences.  Also omitted was any attempt to identify ‘the witnesses not utilized (sic) by the State whose affidavits were available in the Further Particulars’ as well as any indication why it would have been incumbent on any competent legal representative to have called them in the circumstances.  Apart from the bare allegation of the applicant’s attorney that such affidavits corroborated the applicant’s version, nothing was placed before us to support this.

[62] The applicant has also not shown why the forensic evidence concerning the identification of traces of his DNA on the complainant’s jeans and undergarment should have been challenged.  He has furthermore not explained the manner in which he considered that evidence should have been ‘contextualised’, or the nature of the cross-examination that he apparently considers should have been directed in connection with that evidence.  It is clear that the DNA evidence did not, by itself, establish that there had been sexual penetration, but that was of no significance in the context of the applicant’s admission with which we have already dealt at some length. To this we should add that during argument the applicant’s counsel confirmed that there is no suggestion that Van Rooyen’s cross-examination of state witnesses was inadequate in any other way, or that Van Rooyen incorrectly put the applicant’s version to any such witness.

[63] We agree that the application made in terms of s 174 of the Criminal Procedure Act for the discharge of the applicant at the end of the state case was without merit, and that it might, on that account, justifiably be labelled as having been ‘poor’.  But the lack of merit in the application did not detract from the fairness of the applicant’s trial.  Nor, by itself, did it demonstrate that the applicant had not enjoyed legal representation of adequate quality.  Ill conceived and meritless applications in terms of s 174 are regrettably an all too common feature in criminal trials.  We cannot think of an instance, and counsel did not refer us to any, where an ill-judged application for discharge has been shown to have rendered a criminal trial unfair. 

[64] It is evident that in the current case Van Rooyen assessed that it was arguable that the complainant’s evidence, affected as it was by her inability to recall what had happened to her during a critical period of time, had been insufficient to prove that the carnal relations in which she had quite obviously engaged had occurred without her real or apparent consent.  Whilst we would not ourselves have made that assessment, it is not one that was so objectively untenable as to prove incompetence.  Mr van Rooyen’s assessment has to be judged, insofar as an inquiry into his competence is concerned, against his extensive cross-examination of the complainant that had been coherently directed at trying to establish her inability to deny that the applicant could have reasonably deduced that she had consented to his advances up to the stage that she asked him to desist, and that he had thereupon complied with her request for desistance.

[65] For the reasons discussed, we do not consider that the applicant has succeeded in showing that the quality of his legal representation by Mr van Rooyen compromised his fair trial rights.  As pointed out in S v Halgryn 2002 (2) SACR 211 (SCA) at para. 14 –

Whether a defence was so incompetent that it made the trial unfair is … a factual question that does not depend upon the degree of ex post facto dissatisfaction of the litigant. Convicted persons are seldom satisfied with the performance of their defence counsel. The assessment must be objective, usually, if not invariably, without the benefit of hindsight. Cf S v Louw [1990] ZASCA 43; 1990 (3) SA 116 (A) 125D-E. The court must place itself in the shoes of defence counsel, bearing in mind that the prime responsibility in conducting the case is that of counsel who has to make decisions, often with little time to reflect  … . The failure to take certain basic steps, such as failing to consult, stands on a different footing from the failure to cross-examine effectively or the decision to call or not to call a particular witness. It is relatively easy to determine whether the right to counsel was rendered nugatory in the former type of case but in the latter instance, where counsel’s discretion is involved, the scope for complaint is limited. As the US Supreme Court noted in Strickland v Washington [1984] USSC 146; 466 US 668 at 689:

‘Judicial scrutiny of counsel’s performance must be highly deferential. It is all too tempting for a defendant to second-guess counsel’s assistance after conviction or adverse sentence, and it is all too easy for a court, examining counsel’s defense after it has been unsuccessful, to conclude that a particular act or omission of counsel was unreasonable.’

Not everyone is a Clarence Darrow or F E Smith and not every trial has to degenerate into an O J Simpson trial.

The approach to the issue of allegedly incompetent legal representation enunciated in the opinion of O’Connor J in Strickland has also been endorsed by the Canadian Supreme Court in R v G.D.B. 2000 SCC 22; [2000] 1 SCR 520.  This is of significance because the Canadian Charter of Rights and Freedoms, read with the relevant provisions of the Criminal Code of Canada, has, like our Bill of Rights, been interpreted to require effective legal representation as a component of an accused person’s fair trial rights.[13]

[66] In our view, Strickland affords a means to a proper understanding of the import of the dicta in Tandwa supra, at para. 7 that ‘The right to legal representation therefore means a right to competent representation – representation of a quality and nature that ensures that the trial is indeed fair. When an accused therefore complains about the quality of legal representation, the focus is no longer, as before the Constitution, only on the nature of the mandate the accused conferred on his legal representative, or only on whether an irregularity occurred that vitiated the proceedings – the inquiry is into the quality of the representation afforded’.[14]  The judgment in Tandwa after all did not purport to differ in any manner from that in Halgryn, which, as illustrated had referred with approval to the opinion in Strickland.  The juridical genealogy indicates that when a point of incompetent legal representation is sought to be relied upon, the alleged shortcomings in the quality of representation must be shown to be related to the adverse outcome of the case if they are to be the basis for setting the proceedings aside.

[67] It appears to us that our jurisprudence on the subject matter (we refer to Halgryn, Tandwa and Okah supra) has developed on closely similar lines to that of Canada.  In G.D.B. supra, at paras. 26-29, the Supreme Court of Canada summed up the approach to be taken in matters in which allegedly or apparently ineffective legal representation is an issue to be considered as follows:

26. The approach to an ineffectiveness claim is explained in Strickland v. Washington, [1984] USSC 146; 466 U.S. 668 (1984), per O’Connor J.  The reasons contain a performance component and a prejudice component.  For an appeal to succeed, it must be established, first, that counsel’s acts or omissions constituted incompetence and second, that a miscarriage of justice resulted.

27.  Incompetence is determined by a reasonableness standard.  The analysis proceeds upon a strong presumption that counsel’s conduct fell within the wide range of reasonable professional assistance.  The onus is on the appellant to establish the acts or omissions of counsel that are alleged not to have been the result of reasonable professional judgment. The wisdom of hindsight has no place in this assessment.

28. Miscarriages of justice may take many forms in this context. In some instances, counsel’s performance may have resulted in procedural unfairness. In others, the reliability of the trial’s result may have been compromised.

29. In those cases where it is apparent that no prejudice has occurred, it will usually be undesirable for appellate courts to consider the performance component of the analysis. The object of an ineffectiveness claim is not to grade counsel’s performance or professional conduct.  The latter is left to the profession’s self-governing body. If it is appropriate to dispose of an ineffectiveness claim on the ground of no prejudice having occurred, that is the course to follow (Strickland, supra, at p. 697). 

[68] In the circumstances, not being persuaded that the applicant has shown that Mr van Rooyen’s conduct of his case did not fall within the wide range of reasonable professional assistance or that it gave rise to cognisable prejudice, we find no good grounds to exercise the court’s discretion in the applicant’s favour by condoning the unreasonable delay with which the application for review was instituted.

[69] The following orders are made:

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 magistrate’s court case no. SSB 165/2015 is refused.

 

 

A.G. BINNS-WARD

Judge of the High Court

 

 

J.I. CLOETE

Judge of the High Court

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