IMPRISONMENT DELAYED

ARENDSE v MAGISTRATE, WYNBERG AND OTHERS 2017 (1) SACR 403 (WCC)

Sentence — Imprisonment — Delay of eight years in implementing sentence after failure of appeal to Supreme Court of Appeal — Applicant seeking order that he be deemed to have served term of imprisonment — Blame for not informing him that he had to undergo his term of imprisonment not only attributable to state, applicant partly to blame for doing nothing — Application dismissed.

 

The applicant’s sentence, imposed in March 2003, of an effective three years’ imprisonment for dealing in dagga, was upheld on appeal to the Supreme Court of Appeal (the SCA) in September 2006. He was on bail at the time, having spent 14 months in prison pending the outcome of a review to determine whether he should be sentenced by the district magistrate or the regional-court magistrate. It took the authorities until January 2015 to issue a notice of surrender to the applicant to commence serving his sentence. When he was eventually brought before the court, he opposed the issue of a warrant for his arrest in terms of s 299 of the Criminal Procedure Act 51 of 1977, indicating his intention to approach the High Court for an order that he be deemed to have served his sentence of imprisonment because of the lengthy delay by the state in seeking his incarceration. He contended that, after the refusal of his appeal by the SCA, he had instructed his attorneys to take the matter on appeal to the Constitutional Court, but that they had failed to do so. The magistrate then suspended the outcome of the application before her and postponed the matter pending the decision of the High Court in the present proceedings. The applicant contended that the present court had jurisdiction in terms of s 169(1)(a) of the Constitution read with s 172(1)(b).

Held, that s 169(1)(a) of the Constitution read with s 172(1)(b) bestowed wide powers on the High Court to determine constitutional matters which were not in the sole province of the Constitutional Court, and the present application appeared to fall within such parameters, especially as the applicant expressly disavowed any direct challenge against the sentence which he sought to avoid serving. In these circumstances the court had jurisdiction to determine the matter. (Paragraph [26] at 409c–e.)

Held, further, that what was at issue was whether any delay between the dismissal of the applicant’s appeal by the SCA and his being called upon to surrender himself to undergo imprisonment involved an infringement of his constitutional rights.

Held, further, that the applicant’s allegation, that the blame for the delay lay at the door of the state, was highly problematic, both conceptually and from a factual point of view, since he had condoned the delay in finalising the matter and studiously ignored the fact that service upon him of a notice to surrender himself and serve his sentence was long overdue. In such a situation, the circumstances would have to be quite exceptional before such a person could validly claim, when the wheels of justice finally caught up with him, that his constitutional rights would be infringed by having to serve his sentence. (Paragraphs [34] and [50] at 410i–411b and 415i–416a.)

Held, further, that it was inconceivable that the applicant, a correctional-services official with nearly three decades of experience, during which he would frequently have been exposed to the workings of the criminal-justice system insofar as it related to the processing of appeals and the serving of custodial sentences, could have honestly believed that his appeal was pending before the Constitutional Court for a period in excess of seven or eight years. In the circumstances he had failed to prove any infringement of his right to a speedy trial.

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