THE
HIGH COURT OF SWAZILAND
CRIM.APP.NO.14/2000
In
the matter between:
EPHRAEM
PHINEAS KAUNDA Appellant
Vs
REX Respondent
CORAM: MAPHALALA
J.
MASUKU
J.
For
the Appellant: In person
For
the Respondent: Ms LaNgwenya
JUDGEMENT
14/05/02
Masuku
J.
This
is an application for leave to appeal to the Court of Appeal from a
judgement of this Court in its appellate capacity. The Applicant was
convicted and sentenced by the Senior Magistrate, Mbabane, His
Worship Mr S. Mngomezulu, as he then was to eighteen years
imprisonment on a charge of rape with aggravating factors. He
appealed to this Court on both conviction and sentence but later
abandoned the appeal against conviction. The matter therefor
proceeded only on the question of sentence.
2
This
appeal was successful in part, in that the sentence of 18 (eighteen)
years was set aside and substituted for one of fifteen (15) years and
full reasons for this decision were handed down on the 8th February,
2001.
The
Applicant is now desirous of appealing to the Court of Appeal for a
possible reduction of the sentence but there are certain insuperable
difficulties standing in his way. Chief amongst these is the fact
that the judgement appealed against was handed down on the 8th
February, as aforesaid but the letter seeking leave to appeal is
dated 12th December, 2001 and bears the Registrar's stamp
acknowledging receipt, dated 15th January, 2002. Ms / LaNgwenya for
the Crown took issue with this inordinate delay, particularly because
the Applicant did not file any application for condonation in this
regard.
In
terms of the provisions of Rule 49 (1) read together with Rule 52, of
the High Court Rules, as amended, application for leave to appeal to
the Court of Appeal shall be made fourteen days after the judgement
sought to be appealed against. This the Applicant failed to do and
did not apply for condonation as aforesaid. When required by the
Court to state the reasons for the delay in his address, he failed to
advance any, save stating that there was a delay in the typing of the
letter by the department of Correctional Services. Whilst there may
be an element of truth in this, it does not account fully for the
10-month delay. We did not understand the Applicant at all to say he
was unaware of his rights to file an application for leave to appeal
nor that he did not understand them. He was fully advised thereof
after dismissal of the appeal by this Court.
In
the absence of any application for condonation and in view of his
failure to advance a cogent explanation for such a lengthy delay, I
have no option but rule that his application for leave to appeal be
dismissed for failure to comply with the time periods set out in the
aforesaid Rules.
Ms
LaNgwenya, in her forceful argument, also submitted that the Notice
of Appeal was itself filed six months after the period set out in
Rule 8 (1) of the Court of Appeal Rules, namely within four weeks of
the judgement appealed against. This however is in my view a matter
that would have to be dealt with by the Appeal Court in terms of the
provisions of Rule 16 of the Court of Appeal Rules. I therefor will
not entertain this aspect of the matter, save to state that there
appears to be a trend of unexplained dilatoriness on the Applicant's
3
part,
which may be perceived as an initial acceptance of the judgement of
this Court. The application for leave to appeal and the notice of
appeal appear to have been the result of an afterthought.
The
Rules of Court have been designed for smooth functioning of
litigation and it is important in this regard to religiously comply
with time limits therein set out failing which an attitude of
abandonment of certain procedures may be inferred from prolonged
periods of inaction. Once there is a failure to comply with the time
periods therein set out, it is incumbent upon the applicant to apply
for condonation setting out fully the reasons occasioning the delay.
The provisions of the Rules of Court will not lightly be jettisoned
in the absence of a full and cogent explanation. See ANDRIES
STEPHANUS VAN WYK AND ANOTHER VS BRL a division of BARLOWS CENTRAL
FINANCE CORPORATION Appeal Case No. 44/2000 (per Tebbutt J.A.) at
page 6 unreported;
In
MLOTSHWA v R 1979 - 1981 SLR 55 at 56 D - F, Cohen A.C.J. as he then
was stated as follows:-
"Moreover,
I think the court should be more generous in granting relief in
criminal cases, where the liberty of a person is at stake than in
civil cases; and that it should be strongly influenced by the fact
that its failure to come to the appellant's relief may result in more
dire consequences than the mere loss of money or the payment of a
fine. Although the Court will not in the case of a breach of its
Rules regard itself as a mere rubber stamp where the Director of
Public Prosecutions does not oppose the application, as is the
position in the present matter, nevertheless, his attitude to it
cannot be entirely overlooked. "
We
have, in reaching the above decision on the delay anxiously
considered the above excerpt, particularly the first portion thereof
The following issue, namely prospects of success only served to
buttress the decision to refuse leave in the instant case.
The
responsibility of an applicant for leave to appeal has been
authoritatively stated by Du Toit et al, "Commentary on the
Criminal Procedure Act", Juta, 1995 at 31 - 9 in the following
terms:-
4
"The
person who applies for leave to appeal must satisfy the court that he
has reasonable prospects of success on appeal. The test of a
reasonable prospect has the effect that the court will refuse an
application for leave in those cases where absolutely no chance of a
successful appeal exists, or where the court is certain beyond
reasonable doubt that the appeal will fail... on the other hand, the
trial court need not be certain that the Appellate Division would
come to another view. All that is necessary is that there should be a
reasonable prospect that the appeal may succeed..."
In
an attempt to address the above requirements, the Applicant in his
letter applying for leave to appeal, stated that he was still young
at the time he committed the offence and that he is rehabilitated and
very remorseful for his conduct. He states that he will no longer
pose a threat to society as he has become a born-again Christian.
Ms
LaNgwenya in her blistering address submitted that the accused was
not immature when he committed the offence. That is common cause
regard had to his age then. She further stated that the Court duly
considered and evenly weighed the competing interests, hence it
reduced the sentence, recording though that the crime was very
heinous. In sum, she submitted that prospects of success on appeal
were non-existent.
In
his reply, the Applicant conceded that the desert before him was
just, viewed against the atrocious and merciless manner in which he
executed this dastardly act. I am of the view that the Applicant has
totally failed to demonstrate in anyway, given the entire attendant
circumstances that this Court erred or misdirected itself grossly in
imposing the sentence that it did.
Whereas
the Applicant will spend long time in prison, which will be reduced
by good behaviour, he can be able to pull himself up with his own
bootstraps as it were, and can do something meaningful after his
release. The victim on the other hand has to deal with this trauma
for the rest of her life and this may affect her marriage prospects
or even her relationship with other men. The sentence eventually
imposed by this Court can be attacked in other quarters as erring on
the side of leniency.
5
On
the whole, and for the above reasons, the application for leave to
appeal is dismissed. The Applicant has in my view failed to
demonstrate that he has reasonable prospects of success as heretofore
described. The Appellant may however petition the Court of Appeal
within six (6) weeks of this judgement to hear the appeal.
T.S.
MASUKU
JUDGE
I
agree
S.B.
MAPHALALA
JUDGE
