THE SUPREME COURT OF APPEAL
REPUBLIC OF SOUTH AFRICA

JUDGMENT

Case No:  432/07
In the matter between:

KHOLISILE MANTSHA                                                    APPELLANT

v

THE STATE                                                                      RESPONDENT

Neutral citation:
Mantsha v The State (432/2007) [2008] ZASCA 121
(26 September 2008)

Coram:
Heher JA, Jafta JA et Maya JA

Heard:
15 September 2008

Delivered: 26 September 2008

Summary:
Appeal against refusal of condonation for failing to lodge an appeal
timeously – requirements therefor and grounds on which the appeal
court will interfere.

____________________________________________________________

ORDER
____________________________________________________________

On appeal from: Cape High Court (Thring J and Irish AJ sitting as the
appeal court)

(1)
The appeal is dismissed.

___________________________________________________________

JUDGMENT
___________________________________________________________
JAFTA JA (HEHER JA and MAYA JA concurring)

[1] In June 1998 the appellant was convicted of various offences in the
regional court and on 7 August he was sentenced to an effective 15 years’
imprisonment. Immediately after sentencing he indicated to the presiding
magistrate that he wished to lodge an appeal. He was advised to approach
the Legal Aid Board for legal assistance. On 29 August 1998 an attorney
– Mr Lloyd Fortuin – was appointed to represent him. But Fortuin took
no steps towards the prosecution of the appeal.

[2] On 10 September 2002 the appellant – acting in person – sent a
notice of appeal to the clerk of the court. As the lodging of his appeal was
late by more than four years, the appellant also filed an ‘application for
condonation’. Meanwhile the record of his trial and the tapes on which
the proceedings were recorded had been lost in the regional court at an
unknown date. The presiding magistrate’s notes also could not be traced.

As a result the record could not be reconstructed.

[3] The appellant’s application for condonation was heard by the Cape
High Court in 2005. Thring J (Irish AJ concurring) dismissed it on the
basis that the explanation given for the delay was unsatisfactory and
inadequate. The matter was struck off the roll. The present appeal is
against that order and as it was not necessary the appellant did not seek
leave of the court below1.

[4] Although the appellant was represented by an attorney at the
hearing of the condonation application in the court below, the document
setting out the explanation for the delay was drafted by the appellant
himself. His attorney was content to argue the matter on the basis of
papers drawn by the appellant without supplementing or amending them.

[5] In terms of Rule 67 (1) of the Magistrate’s Court rules as it then
read, the appellant ought to have lodged his notice of appeal within 14
days from the date on which he was sentenced2. As the appellant was
seeking an indulgence, he was required to show good cause for
condonation to be granted. Good (or sufficient) cause has two
requirements. The first is that the applicant must furnish a satisfactory
and acceptable explanation for the delay. Secondly, he or she must show
that he or she has reasonable prospects of success on the merits of the
appeal.

1 S v Gopal 1993 (2) SACR 584 (SA); S v Leon 1996 (1) SACR 671 (A) and S v Mohlathe 2000 (2)
SACR 530 (SCA).
2 Rule 67 (1) then provided: ‘A convicted person desiring to appeal under section 103 (1) of the Act
shall within 14 days after the date of conviction, sentence or order in question, lodge with the clerk of
the court a notice of appeal in writing in which he shall set out clearly and specifically the grounds,
whether of fact or law or both fact and law, on which the appeal is based.’

[6] In this matter the appellant’s application did not deal with
prospects of success on the merits of his conviction and sentence. As
regards the delay he furnished the following explanation:

‘On the 10 August 1998 I applied for Legal Aid in Athlone Justice Centre. On the
29 August 1998 Mr Lloyd Fortuin was appointed as my legal representative. He
consulted with me as soon as he was appointed to inform me about his duty. He told
me that he was appointed to represent me on the appeal itself, he is also investigating
the chances of appealing the case. Mr Fortuin came to me on the 17 January 2002 that
he will be closing the file of my appeal temporally because the legal aid failed to
honour its agreement of paying for his services on this matter. He wishes that I will
persue the legal aid personally to honour its promises. He also told me that yes he
wishes to do the appeal after developing a relationship between us, as we have been
corresponding for more than 3 years. But my duty was to persue legal aid.
He also told me about the recommendations. He was to make to the Legal Aid Board.
He never mentioned to me that he was only appointed only to investigate the chances
of the appeal. I was led to believe I had a lawyer for my appeal. I came to understand
that when the clerk of the court in Wynberg court wrote me a letter telling me that I
have to note an appeal and condonation. The clerk of the court Miss S Francke told
me that Mr Fortuin was only appointed to investigate that letter came to me on the
9 October 2002.
Eversince 1998 I have been writing to numerous government departments seeking
legal advice in order to persue my appeal but all of them kept referring me to one
office, the Athlone Justice Centre for assistance. That office to me is of no assistance.
On the 2 July 2002 Ms Desai who is the senior executive at Justice Centre wrote me a
letter and said I do not qualify for legal aid as I have served more than six months of
my sentence and that is according to the guide policy of 2002 Legal Aid paragraph
3.1.2.8. I fail to understand that because I applied 3 days after my sentence and it is a
failure within their office not to speed up my process.’

[7] The above explanation was not contained in a sworn statement or
affidavit. It was set out in a document titled ‘notice of condonation’. The

court below was willing to overlook the procedural imperfection and
made allowance for the fact that the document was drawn by the
appellant himself. Guided by considerations such as the length of the
delay, the explanation therefor and the prospects of success on the merits,
the court a quo found that the delay was inordinately long and that non-
compliance with Rule 67 (1) was gross.

[8] The court below assessed the explanation given by the appellant in
the context of his right to appeal entrenched in s 35 of the Constitution.
Applying the principle of fairness to both the appellant and the State, the
court below concluded that in the absence of a satisfactory explanation,
condonation ought to be refused. The court reasoned thus:
‘The longer the delay, generally speaking, the more reluctant will a court of appeal be
to condone it and the more persuasive will the explanation for the delay have to be
before condonation can be granted. In this case the explanation is, in my view, far
from satisfactory or persuasive. In fact, in my opinion it is totally inadequate.’

[9] This court has a restricted power of interference with the decision
of a court a quo in relation to a condonation application. It must be
persuaded that that court did not exercise a judicial discretion.3 In
Mabaso v Law Society, Northern Provinces and Another4, the
Constitutional Court succinctly outlined the test in the following terms:

‘The Rules of [the Supreme Court of Appeal] provide that it may condone the failure
to comply with its Rules, and condonation will ordinarily be granted when sufficient
cause is shown. It is trite law that a court considering whether or not to grant
condonation exercises a discretion. The discretion must, of course, be exercised
judicially on a consideration of all the facts and “in essence it is a matter of fairness to

3 In the sense discussed in S v Leon 1996 (1) SACR 671 (A) at 673b-h; see also S v Basson 2007 (3) SA
582 (CC) at paras 110-111.
4 2005 (2) SA 117 (CC) para 20.

both sides”. It is clear that the SCA may decide an application for condonation
without considering the merits of the case, though it does so only where there is a
gross and flagrant failure to comply with its Rules. Ordinarily the approach of an
Appellate Court to the exercise of such a discretion is that it will not set aside the
decision of the lower court “merely because the Court of appeal would itself, on the
facts of the matter before the lower court, have come to a different conclusion; it may
interfere only when it appears that the lower court had not exercised its discretion
judicially, or that it had been influenced by wrong principles or a misdirection on the
facts, or that it had reached a decision which in the result could not reasonably have
been made by a court properly directing itself to all the relevant facts and principles”.’

[10] The court a quo was well aware that allowance had to be made for
the appellant’s own involvement in the pursuit of his appeal. But it also
recognised, very properly, that such involvement could not supplement
fundamental lacunae in the substance of the application.
[11] In considering an application for condonation a court must take
into account a number of considerations. These include the extent of non-
compliance and the explanation given for it; the prospects of success on
the merits; the importance of the case; the respondent’s interest in the
finality of the judgment; the convenience of the court and the avoidance
of unnecessary delay in the administration of justice.5

[12] Before us, although the appellant’s attorney conceded that the
explanation given for the delay was inadequate, he argued that the court
below was wrong in finding that ‘nothing happened’ from the moment
the appellant was sentenced until 10 September 2002 when a notice of
appeal was lodged. He submitted that Mr Fortuin was instructed to
prosecute the appeal but failed to do so. The error pointed out by the
attorney does not affect the inadequacy of the explanation given for the

5 Federated Employers Fire and General Insurance Co Ltd v McKenzie 1969 (3) SA 360 (A);
S v Adonis 1982 (4) SA 901 (A) and S v Di Blasi 1996 (1) SACR 1 (A).

delay. Even if the step taken by the appellant in instructing Mr Fortuin is
discounted from the period of four years, there remains a period of three
and half years for which there was no explanation furnished. Where non-
compliance with the rules is time-related, the explanation must cover the
entire period. In Uitenhage Transitional Local Council v SA Revenue
Service6, Heher JA repeated the admonition previously issued to
practitioners who bring applications such as the present. He said:

‘One would have hoped that the many admonitions concerning what is required of an
applicant in a condonation application would be trite knowledge among practitioners
who are entrusted with the preparation of appeals to this Court: condonation is not to
be had merely for the asking; a full, detailed and accurate account of the causes of the
delay and their effects must be furnished so as to enable the Court to understand
clearly the reasons and to assess the responsibility. It must be obvious that, if the non-
compliance is time-related then the date, duration and extent of any obstacle on which
reliance is placed must be spelled out.’7

[13] Moreover the attorney who represented the appellant in the court
below did not heed the above admonition.8 She did not apply her mind to
the propriety of the form followed by the appellant in drafting the papers.
Nor does she appear to have considered whether the notice filed set out
an acceptable explanation for the delay. Not only did Fortuin not make an
affidavit corroborating the appellant and explaining his own conduct, but
no explanation was offered by the appellant for the failure to obtain such
an affidavit. From the heads of argument she filed on the appellant’s
behalf in this court, it seems that she does not appreciate the basic
requirements for a successful application for condonation. Her heads of
argument also omitted to deal with the test for interference by this court

6 2004 (1) SA 292 (SCA).
7 Id para [6].
8 Not the attorney who appeared before us in the appeal.

in orders refusing condonation. I mention these matters not as criticism of
the appellant, but rather to emphasise that the seriously inadequate case
originally made by the appellant gained nothing by what was done on his
behalf by his legal representatives prior to the hearing in this court.

[14] Regarding prospects of success on appeal, the appellant’s attorney
submitted before us that, since the record has been lost and cannot be
reconstructed, the appellant has good prospects of success. Reliance for
this proposition was placed on S v Chabedi9 where this court said:

‘On appeal, the record of the proceedings in the trial Court is of cardinal importance.
After all, that record forms the whole basis of the rehearing by the Court of appeal. If
the record is inadequate for a proper consideration of the appeal it will, as a rule, lead
to the conviction and sentence being set aside.’

[15] The above statement must be read in context. There can be no
doubt that the setting aside of a conviction and sentence, in a case where
the record is lost, is not based on a finding made after consideration of the
merits. That such a result will follow, if condonation is granted, cannot
lay the foundation for the submission that the appeal has prospects of
success on its merits. It follows that the appellant’s reliance on Chabedi
was misplaced. It was necessary, in the circumstances, that the appellant
took the court a quo into his confidence concerning the evidence led in
the case. That the record was missing did not detract from this duty; that
would simply have rendered it more difficult for the state to rebut his say-
so. But he made no effort in this regard.

[16] It follows from what I have said that the approach of the court a

9 2005 (1) SACR 415 (SCA) para 5.

quo cannot be faulted. In the result the appeal is dismissed.

________________
C N JAFTA
JUDGE OF APPEAL

APPEARANCES:

FOR APPELLANT:

C B Brand

Instructed by

Justice Centre, Cape Town

Legal Aid Board, Bloemfontein

FOR RESPONDENT:
M Allie

Instructed by
The Director of Public Prosecution,

CAPE TOWN

The Director of Public Prosecution

BLOEMFONTEIN

THE SUPREME COURT OF APPEAL
REPUBLIC OF SOUTH AFRICA

MEDIA SUMMARY – JUDGMENT DELIVERED IN THE SUPREME COURT OF APPEAL

From:
The Registrar, Supreme Court of Appeal

Date:
26 September 2008

Status:
Immediate

K MANTSHA v THE STATE

Please note that the media summary is intended for the benefit of the media and does not
form part of the judgment of the Supreme Court of Appeal

In a judgment delivered today, the Supreme Court of Appeal has dismissed an appeal
against the decision of the Cape High Court, in terms of which that court had refused Mr
Kholisile Mantsha – the appellant – permission to prosecute his appeal. Mr Mantsha was
convicted of robbery, unlawful possession of a fire-arm and ammunition and two counts of
attempted murder. The regional court sentenced him to a total of 15 years’ imprisonment
on 7 August 1998.

Upon intimating that he wished to appeal, an attorney was appointed by the Legal Aid
Board to represent him in the appeal process. But that attorney failed to prosecute his
appeal. In September 2002, Mr Mantsha himself lodged papers relating to his appeal but
then it was too late. He was required to lodge his appeal within 14 days from the date of
sentencing. Since his appeal was then out of time, he was required to ask for permission
to prosecute it. Such request required that he furnishes the court with a reasonable
explanation for the delay and show that he had prospects of success in the merits of the
appeal.

Since the papers were prepared by Mr Mantsha himself, they did not satisfy these
requirements. However before his request was heard by the Cape High Court, the Legal
Aid Board appointed another attorney to represent him. This attorney failed to correct the
papers and argued his case on the basis of the defective papers. His request was
dismissed by the Cape High Court and the attorney concerned lodged a further appeal to
the SCA. In dismissing the appeal the SCA was very critical of the quality of the legal
representation Mr Mantsha has received at the hands of the attorney appointed by the
Legal Aid Board.