ABSENCE OF MEMBER OF COURT LEADS TO TRIAL DE NOVO

S v COTENBERG 2015 (2) SACR 56 (WCC)

Court — High Court — Full court — Absence of member of — Where all judges who constituted court on previous occasion no longer available, no reason why matter could not start de novo — Provisions of s 17(2) of Supreme Court Act 59 of 1959 and s 14(5) of Superior Courts Act 10 of 2013 had to be interpreted purposively.

Appeal — Postponement of — Power of court — Postponement sine die — Court fully entitled to postpone appeal in terms of provisions of s 22 of Supreme Court Act 59 of 1959 — Although no prohibition against postponing sine die, process had to be properly managed and it was proper to set specific date for postponement.

The appellant was convicted in a regional magistrates’ court on counts of possession of a firearm and ammunition as well as pointing a firearm and of committing a nuisance by unlawfully discharging a firearm. The counts were taken together for the purposes of sentence and he was sentenced to three years’ imprisonment. He appealed against the conviction and sentence and when the matter came before the court in 2004 it was postponed sine die for the purposes of obtaining a probation officer’s report. The report was made available in 2005 but the matter was not re-enrolled until 2014 due to an oversight in the office of the Director of Public Prosecutions. In the meantime the permanent judge who had sat on the appeal had retired and the acting judge never returned to act and it was unclear what had become of him. The court requested argument on whether the previous court was seized with the matter when it postponed it sine die for a correctional supervision report, and, if so, whether the court was lawfully constituted and competent to deal de novo with and finalise the appeal in the light of the unavailability of the previous court. The court also requested argument on whether a court in a criminal appeal could postpone a matter sine die.
Held, that the court was fully entitled to postpone the matter in terms of its powers derived from s 22 of the Supreme Court Act 59 of 1959.
Held, further, that the provisions of s 17(2) of the Supreme Court Act and s 14(5) H of the current Superior Courts Act 10 of 2013 had to be interpreted purposively and there was no reason why, when all the judges who constituted the court on the previous occasion were no longer available, the matter could not start de novo. A narrow interpretation of the two sections could mean that a matter could start de novo where the remaining judges did not constitute a majority but not where all the judges were no longer available. Such an interpretation could lead to absurdities and the court on the present occasion was properly constituted. It would in any event be undesirable to send it back to the court a quo.
Held, further, that although there was no prohibition against postponing a criminal appeal sine die, the process had to be properly managed and monitored to ensure that the matter was not lost in the system. It would be proper to postpone the matter to a specific date so as to enable the court to have judicial oversight on progress made and to take appropriate steps where there was any undue delay.

The court held on the evidence that all of the convictions other than that of the unlawful possession of a firearm and ammunition had to be set aside and it then turned to consider the issue of sentence. It was submitted for the appellant that his circumstances which had been presented to the court at the time of sentencing had since changed for the better and that in the exceptional circumstances of the case the court should take into consideration his current circumstances in meting out an appropriate sentence.
Held, that sending the appellant to prison would not serve any purpose, and in considering what sentence would be appropriate, his current personal circumstances were to be taken into consideration. The inordinate delay in finalising the matter was a significant factor to take into consideration. The appellant had to wait in anguish for 10 years for the matter to be finalised. In the circumstances an appropriate sentence would be a fine of R3000 or 12 months’ imprisonment and a further 12 months’ imprisonment suspended for three years on certain conditions.

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