IN THE HIGH COURT OF SOUTH AFRICA

EASTERN CAPE LOCAL DIVISION, BHISHO

Case no. CA&R 24/2018

In the matter between:

MTHETHELELI GABANI Appellant

and

THE STATE Respondent

________________________________________________________________

APPEAL JUDGMENT
________________________________________________________________

STRETCH J:

“Justice is conscience, not a personal conscience

but a conscience of the whole of humanity.
Those who clearly recognize the voice of their own conscience
usually recognize also the voice of justice.”
- Aleksandr Isayevich Solzhenitsyn

[1] On 3 August 2011 the appellant (Mthetheleli Gabani) and three others
were arraigned on a charge of gang rape in the Mdantsane regional court before
 2

Gixana Esq. The appellant was 28 years old at the time. This was his first
brush with the law.

[2] The rape was alleged to have taken place a year ago. The accused were
represented by one Mr Mnyute. They appeared in the following order:

Accused no. 1: Lazola Ndadlana

Accused no. 2: Lubabalo Ngala
Accused no. 3: Siphiwo Kunene
Accused no. 4: Mthethelele Gabani (the appellant)

[3] Accused nos 1 and 3 pleaded consensual sexual intercourse1. The

appellant and accused no. 2 denied having had intercourse with the
complainant.

[4] The complainant testified that she had hitched a lift with the four accused.
She sat in the front seat of the vehicle next to the driver. En route they stopped
the vehicle and took turns to rape her. The driver of the vehicle raped her once
while his companions restrained her. He then went off with the car to buy
cigarettes while his co-accused continued to rape her repeatedly. He did not
return.

[5] Some time thereafter she was travelling with the police when she saw the
appellant, whom she identified to the police as having been present when she
was raped. One of the policemen fetched the appellant and placed him in the
police vehicle. The appellant said he did not know the complainant.

1
Accused nos 1 and 3 were also forensically linked to the complainant by way of DNA.
 3

[6] At the trial the complainant initially made a dock identification of

accused no. 1 as the driver of the vehicle and then corrected herself and pointed
out the appellant. An affidavit which she had purportedly deposed to, stated
that there were five males in the vehicle and not four, with two of them
occupying the front seat and three in the back seat.2 The document further
stated that she was the fourth passenger in the back.3

[7] During cross examination she stated that the vehicle was not a sedan but
actually “a small bakkie”. She disputed that she first met the accused at a venue
by the name of “Wine and Dine”, and that she had accompanied them to
“Bazuka‟s Tavern” (where liquor was purchased) whereafter they all ended up
at a party at a third tavern. She also disputed that she had had consensual
intercourse with accused no. 3 in the bakkie at Wine and Dine before the others
had boarded the vehicle. She denied that she had engaged in consensual
intercourse with accused no. 1 at his shack while his companions were in
Bazuka‟s Tavern, and that accused no. 1 had purchased alcohol for her there.

[8] She testified that although she did not see who the first person was who
had raped her, she had assumed that it was the appellant, because he had said
that he would rape her first at the time that they were alighting from the vehicle,
and he had also commenced undressing himself. In her evidence in chief she
said that accused no. 2 only penetrated her slightly. During cross-examination
she said that she was referring to accused no. 3 when she said this, but then
reverted to accused no. 2 upon questioning by the magistrate.

2
This seating arrangement was confirmed by accused no. 2 when he testified.
3
A police witness for the prosecution confirmed that the complainant had told her that there were five men,
that two were seated in the front and that she was in the back with the other three. Significantly, this witness
also stated that the complainant had told her a third version, namely that accused no. 3 went off to buy
cigarettes with the appellant after she had only been raped by the appellant, and no one else, and that she
was left behind with three of the five males, as the appellant and accused no. 3 did not return.
 4

[9] All the accused testified in their defence. The transcript however does not
reflect the evidence of accused no. 3 and that of the appellant. Accused no. 2,
when he testified, confirmed the appellant‟s version as put to the complainant.

[10] The trial magistrate convicted all four the accused, inclusive of the
appellant . According to the transcribed judgment the magistrate‟s primary
reason for convicting the appellant (apart from relying on the complainant‟s
assumption that he did) was because he was in the presence of his co-accused
on the day in question. In my view the magistrate, in convicting the appellant,
placed far too much reliance on the uncorroborated evidence of the
complainant. Her evidence did not pass muster as having been sufficiently
honest and reliable in order for a conviction to be secured based on her
testimony as a single witness. Furthermore, a number of errors and
misdirections are evident upon a cursory reading of the judgment. I mention a
few:

a. The record reflects that the complainant had said that she was picked
up by a small bakkie with no canopy, with two occupants in the cab
and two in the bin. She testified that she was seated between the
driver and the passenger in the cab. The magistrate however recorded
that the complainant had referred to four passengers in the back and
two occupants in the front, making the occupancy of the vehicle a total
of six men before she boarded.

b. The complainant testified that she was not sure whether the appellant
had worn a condom when he raped her. The magistrate found as a fact
that he did, that the complainant had testified to this effect, and that
this was the reason why the appellant‟s DNA could not be linked to
the complainant. However, later in the judgment the magistrate
 5

remarked that the complainant had said that it was “possible” that the
appellant had worn a condom.

c. It was the version of accused nos 1 and 3 throughout the trial that the
complainant had engaged in consensual sex with them. The magistrate
however, originally incorrectly referred to this as the version of
accused no. 1 and that of the appellant.

d. The magistrate ignored the discrepancies between the evidence of the

complainant on the one side, and that presented by the police witness,
that recorded in the appellant‟s affidavit, as well as that recorded on
the medical examination form, stating for example that the
complainant had told the doctor that she was raped by four men while
a fifth man watched.

e. The complainant testified that her cellular phone was taken but
returned to her. According to the doctor‟s notes the phone was not
returned. This discrepancy was also not addressed.

f. The prosecution only sought to prove previous convictions with

respect to accused nos 1 and 3, who admitted their criminal records.
The magistrate initially found that it was accused nos 1 and 2 who had
admitted previous convictions. During judgment on sentence the
magistrate recorded that none of the accused had previous convictions.

g. The magistrate found that no substantial and compelling

circumstances existed to deviate from the mandatory sentence of life
imprisonment. In the same breath however, the trial court opined that
 6

life sentences would be “disproportionate” and sentenced the appellant

and his erstwhile co-accused to 28 years‟ imprisonment instead.4

[11] The appellant and his co-accused were sentenced on 11 November 2011.
Leave to appeal against the convictions and the sentences imposed was refused.

[12] On 31 March 2017 the Mdantsane Magistrates‟ Court noted receipt of the
appellant‟s petition to the Judge President of this Division for leave to appeal.
On 4 June 2018 the petition served before Hartle J under cover of an evenly-
dated note (with no addressee and sans any record) from Ms B. Jongolo,
purportedly the clerk of the criminal court, which simply reads:

„Please find record for the above mentioned case.‟

[13] On 3 July 2018 Hartle J, quite properly, issued two directives: firstly, that
the petition must be accompanied by an application for condonation; and
secondly, that the regional court record and all exhibits filed at the trial should
accompany the petition. On 16 October 2018 this court received an application
for condonation (dated a week before), seeking an order in the following terms:

a. that the late filing of the appellant‟s petition be condoned;

b. that he be granted leave to appeal to this court against both judgment and
sentence;
c. that the clerk of the Mdantsane criminal court should cause to be placed before
this court a full transcript of the record and the judgment forming the subject
matter of the appeal.

4
Which, for the appellant, who was 28 at the time, would effectively have meant imprisonment for life in any
event.
 7

[14] The appellant‟s affidavit in support of the condonation application reads

as follows:

„On the 31st March 2017 I was advised by my attorney Mr Mnyute that he had filed
my Petition in the Mdantsane Court and that they will do what is necessary to get it
before the High Court in Bhisho.
I waited long and I then decided to phone the East London Office of Legal Aid SA to
obtain progress on my matter. I was advised that the Clerk of the Court in Mdantsane
who is responsible for Appeal promised that she will get back about progress.
Each and every time I phoned I would be given the same feedback up until my family
member intervened.
It was earlier this year wherein my sister was advised that the Clerk of the Court never
processed my Petition and that she admitted erroneously filing it away as she was new
in the section at that time she did not know what to do. I was advised further that she
promised that she will request the record and process it as soon as possible.‟

[15] These motion papers were accompanied by a confirmatory affidavit from

the errant clerk. Copies of the papers were also forwarded to the registrar of the
Bhisho High Court and to the deputy Director of Public Prosecutions (“the
DPP”). At some stage thereafter two bundles of transcribed documents, a seven-
page wadd of illegible manuscript notes, a form J88 and an affidavit were
dumped in the high court file. I am unable to say when this happened as no
acknowledgment of receipt is reflected.

[16] Some time thereafter, and in pursuance of a general witch hunt regarding
files which had been collecting dust over unacceptably long periods in the
general office of the Bhisho High Court, I stumbled upon the appellant‟s
petition file. This was in March 2019, after having been advised that the
appellant had been phoning the general office every second day from prison to
 8

find out what had happened to his petition.5 It transpired that nothing had been
done to escalate the appellant‟s petition for five months, notwithstanding these
repetitive calls from the appellant and his family members. In particular, there
was no indication that Hartle J‟s directive had ever been transmitted by the clerk
responsible.

[17] On 1 March 2019 I wrote a letter to the clerk of the Mdantsane criminal
court, which was copied to the Mdantsane regional magistrate (Gixana Esq.),
the head of the legal aid board (Ms Mtini) and the acting deputy DPP (Ms De
Kock). The letter reads as follows:

„1. The transcribed record of proceedings in question is rendered materially defective

by the missing portions thereof to the extent that no meaningful consideration can
be given to the petition.

2. The consideration of this petition is accordingly held in abeyance for the record of
the proceedings to be supplemented.

3. The missing portion of the record appears to be the evidence of the erstwhile
accused no. 3 and that of the petitioner Mr Mthetheleli Gabani who has been
contacting the assistant registrar of this Court on a regular basis to find out what
has happened to his matter.
4. If this missing portion cannot be transcribed it must be reconstructed. In S v Leslie
2000 (1) SACR 347 (W) the different approaches to the reconstruction of missing
evidence are set out. It is not required that the record be perfect to allow for a
proper consideration of the petition; it is sufficient that it be adequate for that
purpose (see S v Machaba & Another 2016 (1) SACR 1 (SCA); S v Schoombee &
Another 2017 (2) SACR 1 (CC) at [29].

5
During the course of investigations it soon became apparent that many of the incumbents of clerical
positions in the administrative staff component of the high court were either under-qualified and poorly
trained, or were simply incompetent and disinterested in taking their duties as the executive arm of the high
court seriously. I engaged in an intensive and time-consuming training programme which involved a great deal
of repetition (as many of the incumbents of the posts were simply out of their depth), transparency, regular
reporting and supervision.
 9

5. To that end the reconstruction/supplementation should be done jointly, in open

court, by the magistrate, the prosecutor, the petitioner, the interpreter and the legal
representative, with a proper record of the reconstruction proceedings being kept.
6. The clerk of the magistrates‟ court is required to submit copies of the properly
rectified/constructed record of the lower court proceedings to the High Court
Registrar (Ms Menze), the Legal Aid Board (Ms Mtini) and the Acting Director of
Public Prosecutions (Ms de Kock) before 29 March 2019, whereupon the petition
will be considered.
7. The defective record is returned to the magistrates‟ court together with a copy of
this letter. This problem was raised on 27 November 2018. No response was
received. In the event of a full transcript/reconstruction of the missing portions not
having reached this office before 29 March 2019, serious consideration will be
given to setting the proceedings against the petitioner aside (see S v Phakane 2018
(1) SACR 300 (CC)).‟

[18] Thereafter an office note was secured to the inside cover of the court file
and a duplicate file was opened for tracing purposes. The note, for the attention
of the high court appeals clerk, read thus:

„PRISONER CONVICTED 2011

There is no indication that the letter for the record to be transcribed was ever sent. I
have asked D [my registrar] to do the draft I usually do when records are incomplete.
It complies with the rules. You should keep one as a template. This file must be sent
to the magistrates‟ court with that letter. The other [file] you must keep with the
letter stapled to the inside cover for easy reference.
We will look at it again on 29 March 2019 (end of month).
PSE ENSURE THAT THE PRISONER GETS A COPY OF THIS LETTER
ASAP‟

[19] When it came to my attention that the letter had once again not been
transmitted, my registrar personally sent a copy thereof to the deputy DPP as the
State‟s representative, requesting that office to ensure that the letter made its
 10

way to the magistrate and the clerk of the lower court. After having enquired
from the responsible high court clerk regarding progress, proof of transmission
and the like, we were eventually furnished with the following trailing electronic
mails which I have reproduced in their original form:

„From: Jongolo Bukiwe

Sent: 04 March 2019 10:04 AM
To: Menze Fikiswa
Subject:
Hi Fiks
When reading this record its saying the defective record was returned to the
Magistrate together with a copy of this letter, I want to know which Magistrate and
was it delivered by post or given to the messenger?
Thanks
B Jongolo‟

„From: Fikiswa Menze

Sent: 04 March 2019 10:10 AM
To: Jongolo Bukiwa; Menze Fikiswa
Subject: RE:
Hi cc
Will send the record to your office to your attention. The record is still with us.
Or is it possible to send one of your drivers to come and fetch the record because our
driver is still at Mthatha but will be back today in the afternoon.
Thanx
Fikiswa Menze‟

„From: Jongola Bukiwa

Sent: 04 March 2019 10:21 AM
To: Fikiswa Menze
Subject: RE: RE:
okay‟
 11

„From: Fikiswa Menze

Sent: Monday, 04 March 2019 10:50
To: Jongile Bukiwe
Subject: RE: RE:
Ndicela undibekele stamp kula letter uphinde undithumelele plz dear‟

[20] I accept that communication by way of electronic mail has by and large
become the order of the day in our justice system. It does not however, mean
that all caution should be thrown to the wind when it comes to form. Support
staff at our courts should use a uniform formal form of address in all written
correspondence placed on court files, notwithstanding the use of electronic mail.
Insofar as it may be necessary to explain what this means, a formal
communication from the high court appeals clerk to the magistrates‟ court
appeals clerk, should adhere to a business letter format which should look
something like this:

„Appeals and Reviews

High Court
Private Bag X0003
BHISHO
5605

The Appeals and Reviews Clerk

Magistrates‟ Court

Private Bag X

MDANTSANE

XXXX

27 March 2020
 12

Dear Ms Jongola

INCOMPLETE APPEAL RECORD: S v GABANI

YOUR REFERENCE RC 3/39/11

OUR REFERENCE CA&R 24/18

1. I refer to our letter to you dated 1 March 2020, a copy of which is annexed.
2. Despite the urgency of this matter, this office has still not received any
acknowledgement of receipt or a response from you.
3. Kindly be advised that should no response be received by the end of March 2020, this
matter will be finalised without further recourse to you.
4. Kindly acknowledge receipt of this electronic mail in writing.

Yours faithfully
Ms xxxxxxxxx
Appeals and Reviews Clerk‟

[21] Informal address, address in a language other than that formally accepted
by the courts, acronyms and failures to describe addressees and the matters in
sufficient detail, must be avoided at all cost. Regular follow up must be strictly
adhered to and should be emphasised at all cost by those ostensibly training
these officials. Any judicial officer or interested party having access to the
court file should be placed in a position to establish the status quo and the
history of a matter at first glance.

[22] Despite the contents of the aforesaid note and the clear instruction
regarding the pending of the matter, the clerk in question failed to revert to me a
month later as arranged, or at all. It was only after another entire year had gone
by, that the clerk ventured to mention that the distressed appellant was still
 13

hounding her telephonically about the fate of his petition. As my complaints

about this distressingly irresponsible and dilatory conduct were effectively
brushed under the carpet, I was constrained to retain the file and absorb the
duties of an administrative clerk myself. To that end I wrote an urgent letter on
5 March 2020 to the deputy DPP which reads thus:

„Herewith a copy of my letter dated a year ago, and the shocking trailing mail
emanating from the registrar‟s office. I despair.
Please acknowledge receipt of the letter and record and see what you can do. The
petitioner has served almost nine years already. There is no indication that the matter
was sent to you, the magistrate or the legal aid board.
As the record stands there is, in my view, insufficient evidence against the petitioner.
If there have been no developments by the end of March 2020, I will convene an
urgent appeal court and consideration will be given to taking the Phakane route. I
have no reason to disbelieve the petitioner‟s explanation in his condonation
application. Indeed, I empathise with him.‟

[23] The very next day the deputy DPP acknowledged receipt of both the letter
and the incomplete record, and undertook to resolve the matter and pend her file
for 20 March 2020. Coincidentally, on 20 March 2020, the magistrates‟ court
clerk forwarded the following email to the high court clerk:

„Good Fiks
I have given Ms Gixana6 the correspondence that I received from Judge, she
responded by saying that she has spoken with Mr Myute Legal Aid attorney for M.
Gabani. He told him that they are not allowed to visit prison as he has to go and
consult with Mr Gabani, He will inform Ms Gixana after he meet with Mr Gabani for
the reconstruction of the record.
Regards

6
Ms Gixana was the magistrate in the trial court. By then courts were preparing for the COVID 19 lock down,
scheduled for 24h00 on 26 March 2020.
 14

B Jongolo‟

[24] By this stage this court had granted leave to appeal on the papers as they
stood. To this end an urgent directive was issued on 25 March 2020 to be
copied to all the previous role players including the acting head of Kirkwood
Prison (Mr Patrick Jafta) where the appellant had been patiently waiting for the
wheels of justice to show any semblance of movement at all. The letter reads as
follows:

„1. The petitioner is granted leave to appeal against his conviction and sentence on a
charge of rape by the regional magistrate Ms Gixana Esq, at Mdantsane on 11
November 2011.

[1] The appeal will be hear by the full court sitting at Bhisho on 17 June 2020 at
09h30. Due to the complex history of this matter the petitioner must be
requisitioned to attend court on that day.
[2] A copy of the incomplete record which was forwarded to Ms De Kock from the
DPP‟s office must be returned forthwith. In the interim the magistrate, the
prosecutor and the petitioner must continue to make their best endeavours to
reconstruct the record and return it directly to Ms D Matroos (registrar to Judge
Stretch) with an explanation as to what endeavours, if any, have been made to
effect the reconstruction, by no later than 8 June 2020.
[3] The legal aid office and the DPP must ensure that the petitioner and the State are
represented at the hearing. To that end the petitioner‟s representative must file
heads of argument directly with Ms D Matroos 15 court days before the hearing,
and the DPP must do likewise, ten court days before.
[4] The petitioner must supplement his application for condonation by providing a
full history of all the steps he has taken since 2018 in attempting to process this
petition via the criminal clerks at Mdantsane Court and the Bhisho High Court.
The supplemented affidavit must be filed directly with Ms D Matroos together
with the petitioner‟s heads of argument.
[5] The clerk of the Mdantsane magistrates‟ court (Ms Jongolo) and the criminal court
clerk at Bhisho High Court (Ms Menze) must file affidavits (if any) in response to
 15

the petitioner‟s affidavit five court days before the hearing. These affidavits must
deal with the following issues:

(a) why no response was received from the Mdantsane court when this office first
raised the problem of the defective record on 27 November 2018 and again on
1 March 2019 (see the attached correspondence);
(b) why the defective record was not returned to the magistrates‟ court on 1
March 2019 as per paragraph 7 of the attached instruction, or any time
thereafter for that matter.

[25] For reasons unbeknown to me, this letter too, was not forwarded to the
magistrate on the day on which it was dated, notwithstanding the fact that both
the legal aid board and the prison had acknowledged immediate receipt on that
day. The court file reflects:

(a) that the high court clerk only emailed the letter to one Mr Jama
(whose designation and purpose is not reflected for the convenience
or information of this court or for anyone else for that matter), on 18
May 2020;

(b) that Jama only forwarded the letter to the magistrate on 26 May
2020, more than a week later.

[26] Amongst these emails there does however appear one from “Gixana
Bulelwa” (whom I presume was the trial magistrate) to one
“Sivuyilem@[Link]” (occupation, role, identity and purpose
undisclosed), stating:

„Herewith the correspondence from the High Court.

Please revert so that we can make endeavours to reconstruct the record.‟
 16

[27] Despite the fact that this court had issued a formal directive to, inter alia,
the trial magistrate on 25 March 2020, an informal email was once again sent to
my registrar by Jongolo attaching a further informal email addressed by the trial
magistrate to what appear to be clerks in the magistrates‟ court, without the
courteousy or composure of a formal response to the appeal court. It says this:
„Good day
In response to your minute dated 18 05 2020 I wish to advise as follows;
1. The matter was finalised in 2011.
2. The four accused persons were represented by Mr Mnyute from the LAB Justice
Centre East London.
3. On behalf of the state Mr L Gwentshe appeared and the matter was eventually
finalised by the late Mr Majalisa.
4. In March I indicated to Ms Jongolo our clerk of the court responsible for appeals
and reviews that Mr Mnyute had informed me that he was unable to consult with
the appellant in prison due to the CORONA VIRUS PRISON VISITS
SUSPENSIONS and the status quo remains to date.
5. The purpose of the visit was to bring to the attention of the appellant that (a) The
present record does not reflect his testimony, (b) The attorney could not trace his
file wherein his notes were kept, (c) The attorney could not recall the evidence of
the appellant as this is an old matter, (d) To check whether the appellant could
assist in that regard, (e) And if not whether the appellant had any issues with the
summary of his testimony as reflected in the judgment by the presiding officer.
6. The prosecutor Mr Gwentshe also informed me that he had no luck locating the
docket, let alone the notes compiled by both himself and the late Mr Majalisa.
7. I as the presiding officer could not find my notes anywhere.
8. All the above circumstances prevented us from reconstructing the record.
9. I am in no position to reconstruct the record and I humbly request the judge to
decide the matter on the available record of proceedings.‟

[28] It is against this unfortunate background that the appeal was finally heard
in open court. In my experience, it is not the norm for an appeal judgment to
place issues of logistics and form such as these above the legal substance of the
 17

appeal. There is however, good reason for doing so. This court has
experienced, over at least the past seven years, an accelerating decline in the
loyalty of civil servants to perform their functions optimally, particularly those
who have clerical job descriptions, and without whose executive and
administrative output judges have literally been constrained to become
registrars of obligation instead of paying attention to the rule of law and the
application of the law and relevant legal principles to the case at hand. With
many judges having become steeped in case flow management, which also has
had the effect of detracting from the traditional role of a judge, support structure
staff are becoming less and less inclined to carry their weight or to add value to
the services which the Office of the Chief Justice must of needs be, offer to all
members of the public in civil and criminal courts alike.

[29] Perhaps an apposite example of why I say this, can be found in the
irrelevant, inappropriate and disjointed respective responses of the responsible
clerks to my invitation to deliver affidavits explaining their dilatory,
disinterested and shoddy management of this matter, and their perceived lack of
comprehension as to what is required of them.

[30] The magistrates‟ court clerk, in true form of “pen-pal” type

communication, addressed an email to my registrar which was copied to
someone whose function and interest in the matter is once again not explained
(and which appears to have been rushed out on the day of the appeal hearing in
default of my invitation which called for it to be filed five days before), making
the following irrelevant remarks, clearly indicative of this employee‟s lack of
insight or understanding as to what she has been tasked with as an appeals and
reviews clerk:

„Good Morning
 18

I had received a subpoena to attend today at the High Court in the matter of
Mthetheleni Gabani and others as a witness, it is unfortunate that I cannot attend
today‟s sitting as I had been in contact with a colleague that had tested positive for
Covid – 19 last week I am there for in Quarantine at home and will be going for
testing this week. I hope that I will be able to attend the next sitting as I will by then
have received my results.
I once more apologise for my unavailability.
Regards
Ms B Jongolo‟

[31] The affidavit of the high court clerk reads as follows:

„AFFIDAVIT
I, the undersigned
FIKISWA MENZE
Hereby do make oath and say:
1. The facts herein stated are within my knowledge and I am duly authorized to
make this affidavit.
2. I am an adult female person and employed as a criminal court clerk at Bhisho
High Court Eastern Cape Local Division situated at 10 Independence Avenue,
Bhisho.
3. I confirm that on 05 June 2018, I received a court record under case number
RC3/39/11 from Ms B Jongolo a clerk the criminal court at Mdantsane magistrate
court. A copy of the correspondence is annexed hereto, marked “FM1”.
4. I then handed the court record to the secretary of the senior Judge on the date and
time as mentioned in paragraph 3 above.
5. I confirm further that on 01 March 2019 at about 04:13 pm I received an email as
well as the attached correspondence addressed to the clerk of Mdantsane Criminal
Court from Delene Matroos (Secretary to Judge Stretch) requesting same to be
forwarded to the clerk of the criminal court at Mdantsane Magistrate Court. A
copy of the email and the attached letter is annexed hereto, marked “FM2”.
 19

6. I immediately phoned Bukiwe Jongolo a clerk of the criminal court at Mdantsane

Magistrate Court and requested her to urgently send a person to collect the
abovementioned court record.
7. I forwarded the abovementioned correspondence through email to Bukiwe
Jongolo and also asked her to put a date stamp as proof of service and to
electronical email it back to me. A copy of the email and letter is annexed hereto,
marked “FM2”.
8. The defective court record under case no CA&R 24/2018 was collected by Mr
Thembekile (the messenger from the Mdantsane Magistrate Court) and returned to
the Mdantsane Magistrate court on the 14 March 2019. A copy of the register is
annexed hereto, marked “FM3”.
9. I further declare that neither the response was received from the Mdantsane
Magistrate Court nor the record was returned to ourselves or reached our offices,
after it was returned to Mdantsane Magistrate Court on the 14 March 2019.
10. It is my belief that the above mentioned record is still at Mdantsane Magistrate
Court.
11. That this affidavit has been executed by me without any pressure or undue
influence rather it is my sweet will and consent.‟

[32] The “affidavit” does not deal with any of this court‟s concerns. It fails to
explain why no follow up was done when the record was not returned by 29
March 2019 as stressed in the letter and with the clerk. It does not explain why
no pending system was in place in the office of this clerk or in the general office
of this court to address issues such as these, despite the value of a monthly or
six-weekly pending system and the simple use of a diary, having been carefully
explained and repeatedly emphasised with staff members.

[33] These inordinate delays are not systemic. They are caused by nothing
less than dereliction of duty. Almost nine years have passed since the
appellant‟s application for leave to appeal was refused. It is not clear when
thereafter his petition was lodged, but we do know that he was advised by his
 20

attorney no less than three and a half years ago that the petition had already
been filed with the Mdantsane Magistrates‟ Court, where it lay unattended to for
at least a year until a clerk at the magistrates‟ court admitted that she had filed it
away as she did not know what to do with it. Notwithstanding the gravity of
this error and the mounting urgency which it had created, it took another seven
months for the petition to reach the high court, but woefully, without the record
of the very proceedings which form the obvious subject matter of the petition.7
The application for condonation duly arrived three months after it was called
for.8 The record did not. It is clear that no follow-up was made by the high
court staff since Hartle J had called for the record on 3 July 2018. Once again
the matter lay with the high court for almost a year during which period it was
simply ignored. After the exposure of the next episode in the series of
unfortunate events, the high court clerk too, simply ignored an instruction to
pend the file for a month. Indeed, it was not pended at all, despite the warning
that 29 March 2019 would be the cut-off date for reconstruction or
supplementation of the record. It was only a year later that the matter appears to
have been resurrected quite by coincidence.

[34] The inescapable inference in these circumstances is that magistrates‟

court and high court staff whose very task it is to ensure that this does not
happen, have been directly responsible for at least four years‟ delay in
finalisation of this matter. To my mind this is wholly unacceptable and a severe
indictment on the justice system as a whole, but more particularly on judicial
officers, who are invariably ultimately held accountable for all and any
miscarriages of justice that occur in this system.

7
It must be noted that Mdantsane Magistrates’ Court is literally a stone’s throw away from the Bhisho High
Court. It would have taken a messenger no longer than 15 minutes to deliver the petition by hand, once the
inordinate delay had been exposed.
8
Insofar as this Court’s order setting the proceedings aside on 17 June 2020 did not reflect that condonation
had been granted, this judgment records that it was, and that the application therefor was in any event not
opposed for obvious reasons.
 21

[35] I say this for a number of reasons. The appellant‟s rights to have access
to the courts, to challenge evidence and to appeal (and for all this to happen
without unreasonable delay), are enshrined in section 35 of our Constitution.
On 14 February 2014 Chief Justice Mogoeng Mogoeng released certain norms
and standards applicable to the exercise of judicial functions in all courts. The
objectives of these norms and standards are described as follows:

„OBJECTIVES

These norms and standards seek to achieve the enhancement of access to quality
justice for all; to affirm the dignity of all users of the court system and to ensure the
effective, efficient and expeditious adjudication and resolution of all disputes through
the courts, where applicable. These objectives can only be attained through the
commitment and co-operation of all Judicial Officers in keeping with their oath or
solemn affirmation to uphold and protect the Constitution and the human rights
entrenched in it and to deliver justice to all persons alike without fear, favour or
prejudice in accordance with the Constitution and the law.
…
MONITORING AND IMPLEMENTATION
…
Everything reasonably possible should be done to ensure that Judicial Officers have
all the resources (emphasis added) and tools of trade available to enable them to
perform their judicial functions efficiently and effectively.‟

[36] It is to this end, and in striving to fulfil the objectives set forth in this
tablet of norms and standards traversing the duties of judicial officers, that it is
necessary from time to time to be transparent and address those delays which
frustrate and constrain judicial officers in these very duties.

[37] A “judge” is defined in the Concise Oxford English Dictionary as

„… a public officer appointed to decide cases in a law court.‟

 22

The word “judicial” is defined as

„… relating to the administration of justice; … of or appropriate to a law court of a

judge.‟

[38] To my mind administrative clerks who are employed at the law courts are
no less judicial officers than judges and magistrates when it comes to the
carrying out of the functions and duties assigned to them in order to ensure that
justice is seen to be done. The governance and administration of courts is dealt
with in ss 8 to 11 of the Superior Courts Act 10 of 2013. Section 8 reads as
follows:

„8 Judicial management of judicial functions

(1) For the purpose of any consultation regarding any matter referred to in this
section, the Chief Justice may convene any forum of judicial officers that he or
she deems appropriate.

(2) The Chief Justice, as the head of the judiciary as contemplated in section 165(6)
of the Constitution, exercises responsibility over the establishment and monitoring
of norms and standards for the exercise of the judicial functions of all courts.

(3) The Chief Justice may, subject to subsection (5), issue written protocols or
directives, or give guidance or advice, to judicial officers –

(a) in respect of norms and standards for the performance of the judicial functions
as contemplated in subsection (6); and
(b) regarding any matter affecting the dignity, accessibility, effectiveness,
efficiency or functioning of the courts (emphasis added).
 23

(4) (a) Any function or any power in terms of this section, vesting in the Chief
Justice or any other head of court, may be delegated to any other judicial officer
of the court in question.
(b ) The management of the judicial functions of each court is the responsibility
of the head of that court.
(c) Subject to subsections (2) and (3), the Judge President of a Division is also
responsible for the co-ordination of judicial functions of all Magistrates‟ Courts
falling within the jurisdiction of that Division.

(5) Any protocol or directive in terms of subsection (3) –

(a) may only be issued by the Chief Justice if it enjoys the majority support of the
heads of those courts on which it would be applicable; and
(b) must be published in the Gazette.

(6) The judicial functions referred to in subsection (2) and subsection (4)(b) include
the –
(a) determination of sittings of specific courts;
(b) assignment of judicial officers to sittings;
(c) assignment of cases and other judicial duties to judicial officers;
(d) determination of the sitting schedules and places of sittings for judicial
officers;
(e) management of procedures to be adhered to in respect of –
(i) case flow management;
(ii) the finalisation of any matter before a judicial officer, including any
outstanding judgment, decision or order; and
(iii) recesses of Superior Courts.

(7) The Chief Justice may designate any judge to assist him or her in his or her
judicial leadership functions.‟

[39] The norms and standards are at best designed for judicial officers to
manage the judicial functions set out in section 8(6) of the Superior Courts
 24

Act and s 165 of the Constitution. For the rest, judicial officers are heavily
dependent on the court staff component to carry out their duties competently
and reliably.

[40] In Nkabinde v Judicial Service Commission,9 the SCA, in commenting on

the place of a judge and the proper image of the judiciary in a constitutional
democracy, referred to a decision of the Canadian Supreme Court10, adding
that the position of a Canadian judge is equally applicable in our country.
The relevant portion of the judgment reads thus:
„108. The judicial function is absolutely unique. Our society assigns important powers
and responsibilities to the members of its judiciary. Apart from the traditional role of
an arbiter which settles disputes and adjudicates between the rights of the parties,
judges are also responsible for preserving the balance of constitutional powers
between the two levels of government in our federal state. Furthermore, following the
enactment of the Canadian Charter, they have become one of the foremost defenders
of individual freedoms and human rights and guardians of the values it embodies …
Accordingly, from the point of view of the individual who appears before them,
judges are first and foremost the ones who state the law, grant the person rights or
impose obligations on him or her.

109. If we then look beyond the jurist to whom we assign responsibility for resolving
conflicts between parties, judges also play a fundamental role in the eyes of the
external observer of the judicial system. The judge is the pillar of our entire justice
system, and of the rights and freedoms which that system is designed to promote and
protect. Thus, to the public, judges not only swear by taking their oath to serve the
ideals of Justice and Truth on which the rule of law in Canada and the foundations of
our democracy are built, but they are asked to embody them …

110. Accordingly, the personal qualities, conduct and image that a judge projects
affect those of the judicial system as a whole and, therefore, the confidence the public

9
2016 (4) SA 1 (SCA) [5] (footnotes omitted and emphasis added)
10
Therrien (Re) 2001 SCC 35 (84 CRR (2d) 1)
 25

places in it. Maintaining confidence on the part of the public in its justice system
ensures its effectiveness and proper functioning. But beyond that, public confidence
promotes the general welfare and social peace by maintaining the rule of law. In a
paper written for its members, the Canadian Judicial Council explains:

“Public confidence in and respect for the judiciary are essential to an effective judicial system
and, ultimately, to democracy founded on the rule of law. Many factors, including unfair or
unfounded criticism, or the simple misunderstanding of the judicial role, can adversely
influence public confidence in and respect for the judiciary. Another factor which is capable
of undermining public respect and confidence is any conduct of judges, in and out of court,
demonstrating a lack of integrity. Judges should, therefore, strive to conduct themselves in a
way that will sustain and contribute to public respect and confidence in their integrity,
impartiality and good judgment.”‟

[41] The upshot of this line is that when it comes to the protection and
advancement of human rights and the rights of the individual, the proverbial
buck stops with the judicial officer who is at the coalface. It stops with judges
and magistrates. At the end of the day it is invariably magistrates and judges
who are taken to task in the media and by bodies such as the judicial service
commission when there are complaints that justice has been delayed or denied.
When the Office of the Chief Justice was established by the President of the
Republic of South Africa on 23 August 2010, its vision was recorded to have
been that of a single, transformed and independent judicial system which would
guarantee access to justice for all. Its mission? To provide support to the
judiciary to ensure effective and efficient court administration services.

[41] The case at hand is but one of many where the administrative support for
the judiciary has floundered. The situation does not seem to be improving. In
my respectful view, the time is ripe for the efficiency and effectiveness of our
administrative support structure to be addressed in a manner which is designed
to uplift, empower and educate the administrative arm of our courts to the level
 26

of a foundation upon which the norms and standards of judicial officers can
safely rely in a symbiotic relationship designed to enhance judicial service
delivery.

[42] As far as the substance of the appeal itself is concerned, we are in

agreement on the record as it stands, that the appeal serves to be upheld , and
that the trial proceedings relating to the appellant, as well as the conviction and
the sentence of the appellant by the trial court must be set aside. This much has
been conceded by the respondent. That was accordingly our unanimous finding
when a special appeal court was convened on 17 June 2020. The appellant was
released from custody forthwith. That it has taken this long for this court to
have been placed in a position to make this finding is regrettable.

[43] It is directed that copies of this judgment be made available to the

following parties for their consideration:

a. The Registrar and the Court Manager of the Bhisho High Court.

b. The Deputy Director General Court Services, Pretoria and the

Regional Head, Department of Justice, Eastern Cape.

c. The appellant‟s legal representative, for onward transmission to

the appellant.

___________________
 27

I.T. STRETCH
JUDGE OF THE HIGH COURT

I agree:

___________________
M.S. RUGUNANAN
JUDGE OF THE HIGH COURT

I agree:

____________________
M.S. DUNYWA
ACTING JUDGE OF THE HIGH COURT

Date of hearing and granting of order: 17 June 2020

Date of judgment: 7 September 2020

For the appellant: N.P. Mtini

Legal Aid South Africa
Justice Centre
KING WILLIAMS TOWN

For the respondent: N. Tokota

National Prosecuting Authority South Africa
Deputy Director of Public Prosecutions
BHISHO