THE SUPREME COURT OF APPEAL OF SOUTH AFRICA
JUDGMENT

Not Reportable
Case no. 962/2022

In the matter between:

ANDREW BARNEY AUGUST

Appellant

and

THE STATE

Respondent

Neutral Citation: Andrew Barney August v The State (962/2022) [2023] ZASCA
170 (04 December 2023)

Coram:
MOLEMELA P, CARELSE and MATOJANE JJA and MUSI and
BINNS-WARD AJJA
Heard:
02 November 2023
Delivered: This judgment was handed down electronically by circulation to the
parties’ legal representatives by email, publication on the Supreme

Court of Appeal website and release to SAFLII. The date and time
for hand-down is deemed to be 11h00 on 4 December 2023.
Summary: Application for condonation of the late filing of notice of appeal –
requirements for condonation restated – appellant not satisfying requirements –
application refused and appeal struck from the roll.
Criminal Procedure – Entrapment –import of s 252A of the Criminal Procedure
Act 51 of 1977 (‘CPA’) considered.
Evidence – Exclusionary rule in terms of s 252A of CPA and s 35(5) of the
Constitution considered – no basis on the facts of the current case to exclude
evidence obtained by entrapment by undercover agent.
Application by appellant, in appeal against refusal of High Court to grant petition
for leave to appeal in terms of s 309C of CPA against conviction in the
magistrates’ court, to adduce further evidence for the purpose of the contemplated
appeal to the High Court on the merits –appellant purporting to rely on s 19 of
Superior Courts Act 10 of 2013 – s 19 not applicable in respect of appeals
regulated by the CPA and any other criminal procedural law – application in any
event not satisfying the established test for the introduction of further evidence
on appeal.

________________________________________________________________

ORDER

On appeal from: The Northern Cape High Court (Lacock and Majiedt JJ sitting
as court of appeal):
1. The application for condonation is refused.
2. The appeal is struck from the roll.

JUDGMENT

BINNS-WARD
AJA
(MOLEMELA
P
and
CARELSE
and
MATOJANE JJA and MUSI AJA concurring):
[1] More than 17 years ago, on 20 September 2006, Andrew Barney August
(the appellant) was convicted in the Magistrates’ Court, Kimberley, on a charge
of dealing in drugs (100 Mandrax tablets) in contravention of s 5(b) of the Drugs
and Drugs Trafficking Act 140 of 1992. On 4 October 2006, he was sentenced to
a term of four years’ imprisonment.  The conviction was founded entirely on
incriminating evidence obtained by the police through entrapment.  The appellant
sold the drugs in question to an undercover agent.  At this far remove in time from
the dates mentioned, and notwithstanding that he has long since completed
serving his term of imprisonment, the appellant is seeking leave to appeal against
his conviction.  His intended appeal in the principal case is premised on the

contention that the evidence against him obtained by the trap1 should have been
excluded.
[2] The appellant’s application to the trial court for leave to appeal against his
conviction and sentence was refused on 30 March 2007, as was his subsequent
petition to the Northern Cape High Court, Kimberley (the High Court) in terms
of s 309C of the Criminal Procedure Act 51 of 1977 (the CPA), on 10 June 2008.
An application to the High Court for leave to appeal to this Court against the
refusal of his petition was refused by Lacock and Majiedt JJ in a reasoned
judgment delivered on 10 September 2009.  This Court subsequently, on 10
March 2011, in terms of s 20(4)(b) of the (then subsisting) Supreme Court Act 59
of 1959, granted the appellant leave to appeal against the High Court’s refusal of
his petition.
[3] The appellant failed, however, to timeously prosecute the appeal.  He
attributes the failure to the delinquency of the Legal Aid attorney appointed to
represent him in 2011.  He avers that he laid a complaint against that attorney in
2013, at which stage Legal Aid withdrew its assistance, taking the view that an
appeal would have no practical effect as the appellant had already completed his
sentence.  Legal Aid representation was reinstated several years later, in 2022,
after he had lobbied the Department of Justice.
[4] The preliminary, and potentially dispositive, matter currently before this
Court more than 12 years after leave to appeal was granted is an application by
the appellant for (i) condonation for the late filing of the notice of appeal and
(ii) leave to lead further evidence on appeal.  If condonation is refused, the appeal
falls to be struck from the roll and the application to admit further evidence falls

1 In S v Malinga and Others [1963] 1 All SA 128 (A); 1963 (1) SA 692 (A) at 693F-G, Holmes JA adopted the
following definition of ‘a trap’ given in Gardiner and Lansdown, South African Criminal Law and Procedure,
(1957) 6th ed. vol. 1 pp 659 - 660, ‘a trap is a person who, with a view to securing the conviction of another,
proposes certain criminal conduct to him, and himself ostensibly takes part therein. In other words he creates the
occasion for someone else to commit the offence.’

away.  If condonation is granted and the appeal against the refusal of the
appellant’s petition succeeds, the principal case stands to be remitted to the High
Court to hear the appeal against the magistrate’s judgment convicting the
appellant irrespective of the fate of the application before us to lead further
evidence.
[5] The appellant has not explained in his supporting affidavit why an appeal
at this stage would serve any practical purpose.  His counsel submitted that the
case was of ‘huge importance’ to him because of its effect on his criminal record,
but there was no support for that contention in the appellant’s evidence in the
condonation application.  It is obvious that a successful appeal would correct the
appellant’s criminal record.  It is evident from the trial record, however, that he
already had previous convictions of a similar nature and was facing like charges
in another court at the time of his trial in respect of the matter currently in issue.
The reputational benefit to be derived from a successful appeal in the High Court
would therefore be limited.
[6] There is an indication in the record on appeal that the appellant’s
conviction resulted in a forfeiture order in terms of the Prevention of Organised
Crime Act 121 of 1998.  The value of his property declared subject to forfeiture
was fixed at R2800.00.  The appellant did not, however, rely in support of the
condonation application on any hope or expectation for the return of his forfeited
property or for compensation for its loss if his intended appeal proved successful.
So any idea that this might be the basis for his persistence with the matter is
speculative.
[7] Any implication in the appellant’s continuing prosecution of the matter that
he is seeking to exercise his constitutionally entrenched fair trial rights, which
include the right of appeal to or review by a higher court, has to be assessed in
the context of the provisions and practices in place to discourage frivolous and

meritless appeals and also, significantly, the requirement that such right has to be
exercised timeously.
[8] One is consequently left with the impression that the appellant’s only
purpose in seeking to prosecute the appeal at this remote juncture from the date
special leave was granted to him to do so is to hope thereby to be able to set the
history books to right by reversing the magistrate’s judgment in an eventual
appeal to the High Court.  Does that make his appeal against the High Court’s
refusal of leave to appeal sufficiently material to be entertained so late in the day?
The materiality of the matters in issue is a salient consideration in determining
whether the interests of justice would be served by granting condonation to the
appellant for the inordinate delay.  Objectively, for the reasons just discussed, in
its current state of senescence the matter does not appear to be of significant
importance to the appellant or the administration of criminal justice.
[9] A consistent refrain in the relevant jurisprudence, including several
judgments of this Court and the Constitutional Court, is that condonation entails
the grant of an indulgence and is not to be had just for the asking.2  The relevant
principles – described in that matter with an emphasis on the limits to which a
litigant can rely on ignorance of legal procedures and the incompetence of its
legal representatives, even when its case on the merits might enjoy reasonable
prospects of success – were quite recently comprehensively rehearsed in this
Court’s judgment in SA Express Ltd v Bagport (Pty) Ltd,3 and it would therefore
be a supererogation to repeat them.

2 See e.g. Kham And Others v Electoral Commission And Another [2015] ZACC 37; 2016 (2) BCLR 157 (CC);
2016 (2) SA 338 (CC) para 28, Von Abo v President of the Republic of South Africa [2009] ZACC 15; 2009 (10)
BCLR 1052 (CC); 2009 (5) SA 345 (CC) para 20, eThekwini Municipality v Ingonyama Trust [2013] ZACC 7;
2013 (5) BCLR 497 (CC); 2014 (3) SA 240 (CC) paras 25-27; Mulaudzi v Old Mutual Life Insurance Company
(South Africa) Limited and Others, National Director of Public Prosecutions and Another v Mulaudzi [2017]
ZASCA 88; [2017] 3 All SA 520 (SCA); 2017 (6) SA 90 (SCA) paras 25-26; and Uitenhage Transitional Local
Council v South African Revenue Service [2003] ZASCA 76; [2003] 4 All SA 37 (SCA) para 6.
3 SA Express Ltd v Bagport (Pty) Ltd [2020] ZASCA 13; 2020 (5) SA 404 (SCA).

[10] The general approach to determining whether the interests of justice would
be served by condoning non-compliance with procedural and practice
requirements is well established.  Thus, for example, in Van Wyk v Unitas
Hospital and Another4 it was stated that factors relevant to the enquiry include,
but are not limited to, the nature of the relief sought, the extent and cause of the
delay, the effect of the delay on the administration of justice and other litigants,
the reasonableness of the explanation for the delay, the importance of the issue to
be raised in the intended appeal and the prospects of success.  Each case must be
treated on its peculiar facts, and the weight to be given to the pertinent factors
will vary case by case, but when the delay has been inordinate the public interest
in the finality of judicial decisions (including in criminal matters5) becomes an
accentuated consideration.
[11] As mentioned, the basis upon which the appellant contends that he enjoys
good prospects of success in appealing against his conviction is that the evidence
concerning his entrapment by the police on which the conviction squarely rested
should have been excluded.  It was otherwise not seriously disputed that the
appellant procured the prohibited substances involved at the instance of a police
trap and then sold them to him.
[12] Entrapment is regulated in terms of s 252A of the CPA.  The import of
s 252A of the CPA was considered in depth by this Court in S v Kotzè (Kotzè).6
Our law does not recognise a defence of entrapment but, through the mechanisms
of s 252A, it seeks to address the well-documented concerns about the unfairness
that can arise from the misuse of trapping by law enforcement officers.  The

4 Van Wyk v Unitas Hospital and Another [2007] ZACC 24; 2008 (2) SA 472 (CC); 2008 (4) BCLR 442 (CC)
para 20.
5 Cf. S v Nofumela 1992 (1) SA 740 (A) at 746F and S v Sterrenberg 1980 (2) SA 888 (A) at 893F-G.
6 S v Kotzè [2009] ZASCA 93; 2010 (1) SACR 100 (SCA); [2010] 1 All SA 220 (SCA).

provision does this by way of what Wallis AJA termed ‘an exclusionary rule of
evidence’.7
[13] The position that obtains in terms of s 252A is succinctly summarised in
Kotzè as follows:
‘[23]  The section lays down two approaches to the admissibility of evidence
obtained as a result of the use of a trap. Evidence is automatically admissible if the
conduct of the person concerned goes no further than providing an opportunity to
commit the offence. If the conduct goes beyond that the court must enquire into the
methods by which the evidence was obtained and the impact that its admission would
have on the fairness of the trial and the administration of justice in order to determine
whether it should be admitted.
[24] It must be stressed that the fact that the undercover operation or trap goes
beyond providing the accused person with an opportunity to commit the crime does
not render that conduct improper or imply that some taint attaches to the evidence
obtained thereby. All that it does is create the necessity for the trial court to proceed to
the enquiry mentioned in the previous paragraph.’8

7 Kotze para 21.
8 Kotzè paras 23-24. ‘The enquiry mentioned in the previous paragraph’ is that provided for in s 252A(3) of the
CPA, which provides:
‘(3)(a) If a court in any criminal proceedings finds that in the setting of a trap or the engaging in an undercover
operation the conduct goes beyond providing an opportunity to commit an offence, the court may refuse to allow
such evidence to be tendered or may refuse to allow such evidence already tendered, to stand, if the evidence was
obtained in an improper or unfair manner and that the admission of such evidence would render the trial unfair or
would otherwise be detrimental to the administration of justice.
(b) When considering the admissibility of the evidence the court shall weigh up the public interest against the
personal interest of the accused, having regard to the following factors, if applicable:
(i) The nature and seriousness of the offence, including-
(aa) whether it is of such a nature and of such an extent that the security of the State, the safety of the public, the
maintenance of public order or the national economy is seriously threatened thereby;
(bb) whether, in the absence of the use of a trap or an undercover operation, it would be difficult to detect,
investigate, uncover or prevent its commission;
(cc) whether it is so frequently committed that special measures are required to detect, investigate or uncover it
or to prevent its commission; or
(dd) whether it is so indecent or serious that the setting of a trap or the engaging of an undercover operation was
justified;
(ii) the extent of the effect of the trap or undercover operation upon the interests of the accused, if regard is had
to-
(aa) the deliberate disregard, if at all, of the accused's rights or any applicable legal and statutory requirements;
(bb) the facility, or otherwise, with which such requirements could have been complied with, having regard to the
circumstances in which the offence was committed; or
(cc) the prejudice to the accused resulting from any improper or unfair conduct;

[14] It follows that even if the evidence did establish that the conduct of the
undercover agent concerned went further than just providing an opportunity to
the appellant to commit the offence (a question to be discussed presently), the
admissibility of the evidence would not necessarily be excluded.  The court
would, in such a situation, have to determine whether upholding the fairness of
the trial and the administration of justice required it to be excluded.  And in that
regard, it would weigh up the public interest against the personal interest of the
accused, having regard to the factors identified in s 252A(3)(b) to the extent that
any of them was relevant in the case.
[15] The entrapment of the appellant was part of a broader undercover operation
(Operation Junior) authorised by the Northern Cape Director of Public
Prosecutions (the DPP) in terms of s 252A(4) of the CPA.9  The operation was
initially directed against drug dealers in Postmasburg and Kuruman and
subsequently extended, as a result of evidence uncovered, to include Kimberley,
where the dealing transaction in which the appellant took part happened.  The
appellant was not listed as one of the targets of the originally authorised operation.
A written application to add him as an identified target of the authorised operation
was submitted by the police on 11 December 2003.  The dealing in respect of
which the appellant was convicted occurred on 14 December 2003.
[16] The unchallenged oral evidence was to the effect that authorisation had
been obtained by then, possibly telephonically.  The vagueness of the evidence
on the point was understandable because, when resisting the admission of the

(iii) the nature and seriousness of any infringement of any fundamental right contained in the Constitution;
(iv) whether in the setting of a trap or the engagement of an undercover operation the means used was proportional
to the seriousness of the offence; and
(v) any other factor which in the opinion of the court ought to be taken into account.’
9 Section 252A(4) provides:
‘(4) An attorney-general may issue general or specific guidelines regarding the supervision and control of traps
and undercover operations, and may require any official or his or her agent to obtain his or her written approval
in order to set a trap or to engage in an undercover operation at any place within his or her area of jurisdiction,
and in connection therewith to comply with his or her instructions, written or otherwise.’
It was not in dispute that the Director of Public Prosecutions for the Northern Cape had issued relevant guidelines.

entrapment evidence, the appellant’s then legal representative had not placed the
question of authorisation in issue.  The police witnesses therefore had no reason
to prepare to be examined on the details of the authorisation, and the relevant
events had occurred nearly three years before they testified.  The DPP’s
guidelines prescribed that written authorisation had to be obtained, but it is not
clear whether that requirement also applied in respect of applications to add
persons to the list of suspects in already authorised undercover operations.
[17] An accused person wishing to resist the admission of evidence on the
grounds that the trap was unfair because it went beyond merely offering an
opportunity to the target to commit the offence concerned is required, in terms of
the proviso to s 252A(6) of the CPA, to identify the grounds on which he or she
contends the evidence should be excluded.10  A number of grounds upon which
it can be contended that the conduct of the trap went too far is listed in
s 252A(2).11  The absence of authorisation or the failure to comply with the terms
thereof are amongst them _ in s 252A(2)(a).

10 Section 252A(6) provides:
‘If at any stage of the proceedings the question is raised whether evidence should be excluded in terms of
subsection (3) the burden of proof to show, on a balance of probabilities, that the evidence is admissible, shall rest
on the prosecution: Provided that the accused shall furnish the grounds on which the admissibility of the evidence
is challenged: Provided further that if the accused is not represented the court shall raise the question of the
admissibility of the evidence.’
11 Section 252A(2) provides:
‘In considering the question whether the conduct goes beyond providing an opportunity to commit an offence, the
court shall have regard to the following factors:
(a)   Whether, prior to the setting of a trap or the use of an undercover operation, approval, if it was required, was
obtained from the attorney-general to engage such investigation methods and the extent to which the instructions
or guidelines issued by the attorney-general were adhered to;
(b)   the nature of the offence under investigation, including-
(i)   whether the security of the State, the safety of the public, the maintenance of public order or the national
economy is seriously threatened thereby;
(ii)   the prevalence of the offence in the area concerned; and
(iii)   the seriousness of such offence;
(c)   the availability of other techniques for the detection, investigation or uncovering of the commission of the
offence or the prevention thereof in the particular circumstances of the case and in the area concerned;
(d)   whether an average person who was in the position of the accused, would have been induced into the
commission of an offence by the kind of conduct employed by the official or his or her agent concerned;
(e)   the degree of persistence and number of attempts made by the official or his or her agent before the accused
succumbed and committed the offence;
(f)   the type of inducement used, including the degree of deceit, trickery, misrepresentation or reward;

[18] Not all of the factors listed in s 252A(2) have to be considered in a case;
only those that appear to be pertinent on the peculiar facts of the matter.12  In
Kotzè, they were described as ‘an open list of factors’ and it was observed that
they ‘must be viewed holistically and weighed cumulatively as different factors
may point towards different answers. Not all of the factors will be relevant in
every case’.  Most importantly, as Wallis AJA stressed, ‘[s]ight must not be lost
of the fact that there is only a single question to be answered, namely, whether
the conduct of the trap went beyond providing an opportunity to commit an
offence’.13
[19] It is clear that the object of the forementioned requirement in s 252A(6) is
to define the basis of the challenge so as to alert the prosecution to the questions
it will have to address in order to meet it.14  The required indication of the grounds
upon which objection is taken to the admission usually precipitates a trial within
a trial on the admissibility of the evidence,15 as indeed it did in the current matter.
[20] The declared basis upon which the admission of the evidence was resisted
at the appellant’s trial was that the agent’s conduct had gone beyond merely
affording the opportunity to the appellant to commit the offence, but had actually

(g)   the timing of the conduct, in particular whether the official or his or her agent instigated the commission of
the offence or became involved in an existing unlawful activity;
(h)   whether the conduct involved an exploitation of human characteristics such as emotions, sympathy or
friendship or an exploitation of the accused's personal, professional or economic circumstances in order to increase
the probability of the commission of the offence;
(i)   whether the official or his or her agent has exploited a particular vulnerability of the accused such as a
mental handicap or a substance addiction;
(j)   the proportionality between the involvement of the official or his or her agent as compared to that of the
accused, including an assessment of the extent of the harm caused or risked by the official or his or her agent as
compared to that of the accused, and the commission of any illegal acts by the official or his or her agent;
(k)   any threats, implied or expressed, by the official or his or her agent against the accused;
(l)   whether, before the trap was set or the undercover operation was used, there existed any suspicion,
entertained upon reasonable grounds, that the accused had committed an offence similar to that to which the
charge relates;
(m)   whether the official or his or her agent acted in good or bad faith; or
(n)   any other factor which in the opinion of the court has a bearing on the question.’
12 S v Hammond [2007] ZASCA 164; [2008] 2 All SA 226 (SCA); 2008 (1) SACR 476 (SCA) para 26.
13 Kotzè para27.
14 Kotzè para 19.
15 See s 252A(7) of the CPA; Kotzè para 19; and S v Lachman [2010] ZASCA 14; 2010 (2) SACR 52 (SCA);
[2010] 3 All SA 483 (SCA) para 26.

involved the payment of a monetary inducement to do so.  The appellant’s
attorney, who adumbrated the appellant’s objection to the admission of the
entrapment evidence in his opening statement to the trial court, therefore
(unsurprisingly) did not rely on paragraph (a) of s 252A(2) (lack of approval).  He
relied on other grounds, namely those listed in paragraphs (c), (d), (e), (f), (h) and
(m).
[21] The undercover agent denied that he had provided the appellant with a
financial incentive or reward to commit the offence.  His evidence was to the
effect that the only money that changed hands was the consideration that he gave
to the appellant in payment for the drugs supplied.  There was no need for the
court to determine that dispute of fact, however, as it became evident on the
appellant’s version of the transaction that it was he who solicited a payment from
the agent in order to initiate the illicit transaction.  The appellant testified as
follows in respect of the initiation of the deal:
‘Toe het ek en mnr Hartzenberg [the agent] ingegaan in my huis.  Toe het
mnr Hartzenberg my gevra of ek hom nie ’n guns kan doen en vir hom ’n sterk pil in
die hande kan kry nie.  Toe het ek vir hom gesê dit is okay, ek ken vriende.  Ek sal paar
kontakte maak, sien jy maar ek het nie geld om die kontak te maak nie.  Toe het
mnr Hartzenberg my R500 gegee en gesê ek moet in die tussentyd in vir hom pille kry
en dan moet ek hom kontak sodra die pille daar by my is.’16
[22] Once it became apparent that the appellant’s own evidence negated the
basis for objection stated in his attorney’s statement in terms of the proviso to
s 252A(6), the entrapment evidence thereupon became ‘automatically

16 ‘Then Mr Hartzenberg (the agent) and I went into my house. Then Mr Hartzenberg asked if I could do him a
favour and obtain some hard drugs for him.  Then I said to him that that would be fine, I know some friends. I
shall make some contacts, but look I do not have the money to make the contact.  Mr Hartzenberg then gave me
R500 and told me that I must in the meantime get some pills for him and must contact him as soon as I had the
pills in my possession’.  (My translation.)

admissible’, as it was put in Kotzè supra; subject, of course, if the question were
applicable on the facts, to s 35(5) of the Constitution. 17
[23] It is no cause for surprise in the circumstances that there was no mention
in the appellant’s application to the trial court for leave to appeal, nor in his
petition to the High Court in terms of s 309C that the entrapment evidence should
have been excluded by reason of his having been financially induced to commit
the offence.  Instead, in his petition to the High Court, the appellant raised the
complaint that the trap had not been authorised and blamed his attorney for not
complying with his instructions to make an issue of it at the trial.  He also
complained that the electronic monitoring of the drug deal by the police had
happened in contravention of s 2 of the (since repealed18) Interception and
Monitoring Prohibition Act 127 of 1992 (the IMPA).
[24] It will be apparent from the passage in Kotzè quoted above19 that the
appellant’s contention concerning lack of authority even if factually well-founded
_ which it was not because it went against the unchallenged evidence that the
entrapment was authorised – would not preclude the admissibility of the evidence
obtained by means of it.  It would only be necessary to consider the admissibility
of the evidence if the facts showed that the method of entrapment went beyond
just offering the appellant the opportunity to commit the offence.  Absence of
authorisation would then be only one factor in a matrix of other considerations to
which the trial court could have regard to determine whether at the end of the day
the agent’s conduct went beyond providing an opportunity to commit an offence.
And only if the court concluded that it did, would the court then have to consider
whether to exclude the evidence pursuant to the weighing-up exercise

17 Section 35(5) provides:
‘Evidence obtained in a manner that violates any right in the Bill of Rights must be excluded if the admission of
that evidence would render the trial unfair or otherwise be detrimental to the administration of justice.’
18 Repealed by the Regulation of Interception of Communications and Provision of Communication-Related
Information Act 70 of 2002, which was assented to on 30 December 2002 and came into operation on 30
September 2005.
19 In para 14 above.

contemplated by s 252A(3).  As discussed,20 in this matter the basis upon which
the appellant contended that the method of entrapment had been such as to engage
the enquiry mandated by s 252A(3) was negated by his own evidence.
[25] At the risk of repetition, it falls to be stressed that the sole enquiry before
s 252A(3) comes into play is whether the trap went further than just affording the
opportunity to commit the offence.  The fact that the trap may not have been
authorised is not, of itself, determinative in the enquiry.21  It is merely one of the
factors that, depending on the pertinent factual matrix, might contribute to the
determination.  An absence of authorisation does not, of itself, render evidence
obtained through entrapment inadmissible.  The fact that a trap was unauthorised
is irrelevant unless it serves, in the peculiar context of the case, to indicate that
the conduct of the trap went beyond just providing an opportunity to commit an
offence.22  Therefore, even assuming in favour of the appellant, against the weight
of the evidence, that authorisation was lacking, that, by itself, would be of no
assistance to him.  If the trap did not go beyond offering an opportunity, the lack
of authority would be significant only if the context indicated resultant unfairness
or flagrant and inexcusable non-compliance with the law.  And any exclusion of
the entrapment on that basis would happen in terms of s 35(5) of the Constitution,
rather than s 252A of the CPA.
[26] There is nothing in the evidence in the current matter to show that the trap
went beyond affording the opportunity to the appellant to commit the offence,
and, therefore, save for the possible implication of s 35(5) of the Constitution,
whether the trap had been authorised or not was irrelevant to the admissibility of
the evidence obtained by it.

20 In para 22 above.
21 Bilankulu and Another v S [2020] ZASCA 114 (SCA) para 18.
22 Kotzè, para 26.

[27] Dealing, in the context of undercover and entrapment work, with the issue
of the exclusion of incriminating evidence in terms of s 35(5) of the Constitution,
Tshiqi JA observed in S v Singh and Others23 that –
‘The use of undercover agents by the police, both for the prevention and the detection
of crime, is long established, and is acceptable in our constitutional democracy. Section
35(5) of the Constitution does not provide for automatic exclusion of unconstitutionally
obtained evidence.  Evidence must be excluded only if it (a) renders the trial unfair; or
(b) is otherwise detrimental to the administration of justice. The enquiry as to whether
the admission of evidence would be detrimental to the administration of justice centres
around public interest. Since the enquiry is purely a legal question, the question of the
incidence and quantum of proof required to discharge the onus of proof does not arise.
It essentially involves a value judgment.  In Key v Attorney-General, Cape Provincial
Division, and Another the Constitutional Court stated:
'In any democratic criminal justice system there is a tension between, on the one
hand, the public interest in bringing criminals to book and, on the other, the
equally great public interest in ensuring that justice is manifestly done to all,
even those suspected of conduct which would put them beyond the pale.'[24]
In S v Mthembu [25] this court stated:
‘… Public policy, in this context, is concerned not only to ensure that the guilty
are held accountable; it is also concerned with the propriety of the conduct of
investigating and prosecutorial agencies in securing evidence against criminal
suspects. It involves considering the nature of the violation and the impact that
evidence obtained as a result thereof will have, not only on a particular case, but

23 S v Singh and Others [2016] ZASCA 37; 2016 (2) SACR 443 (SCA) para 16.
24 Key v Attorney-General, Cape Provincial Division, and Another [1996] ZACC 25; 1996 (4) SA 187 (CC); 1996
(6) BCLR 788 (CC) para 13.  The paragraph actually bears quoting in full.  It reads: ‘In any democratic criminal
justice system there is a tension between, on the one hand, the public interest in bringing criminals to book and,
on the other, the equally great public interest in ensuring that justice is manifestly done to all, even those suspected
of conduct which would put them beyond the pale. To be sure, a prominent feature of that tension is the universal
and unceasing endeavour by international human rights bodies, enlightened legislatures and courts to prevent or
curtail excessive zeal by State agencies in the prevention, investigation or prosecution of crime.  But none of that
means sympathy for crime and its perpetrators.  Nor does it mean a predilection for technical niceties and
ingenious legal stratagems. What the Constitution demands is that the accused be given a fair trial. Ultimately, as
was held in Ferreira v Levin, fairness is an issue which has to be decided upon the facts of each case, and the trial
Judge is the person best placed to take that decision. At times fairness might require that evidence
unconstitutionally obtained be excluded.  But there will also be times when fairness will require that evidence,
albeit obtained unconstitutionally, nevertheless be admitted.’
25 S v Mthembu [2008] ZASCA 51; [2008] 3 All SA 159 (SCA); [2008] 4 All SA 517 (SCA); 2008 (2) SACR 407
(SCA).

also on the integrity of the administration of justice in the long term. Public
policy therefore sets itself firmly against admitting evidence obtained in
deliberate or flagrant violation of the Constitution. If on the other hand the
conduct of the police is reasonable and justifiable, the evidence is less likely to
be excluded _ even if obtained through an infringement of the Constitution.'26
[28] There was nothing in the evidence to suggest that the conduct of the trap
in the present case was such as to make it unfair to the appellant for the trial court
to have regard to it.  And it is clear that there was no flagrant violation of the law
because we know from the appellant’s application to adduce further evidence that
prior written application was made for authority to conduct the trap.  There is
nothing to suggest the existence of any reason for the application not to have been
granted in the ordinary course.  The trap was conducted in the context of an
authorised undercover operation.
[29] In Singh, Tshiqi JA pertinently remarked on the role that public opinion
should play towards the avoidance of too nice an approach by the courts in
weighing the adverse effect of the infringement of accused persons’ rights in
entrapment matters in which the accused sought the exclusion of incriminating
evidence with resort to s 35(5) of the Constitution.  The learned judge held, with
reference to this Court’s acceptance in S v Tandwa27 that ‘the public flinches
when courts exclude evidence indicating guilt’, held that ‘[p]ublic opinion is one
of the relevant considerations on whether rights violations are detrimental to the
administration of justice’.28
[30] Assuming, against the weight of the evidence to the contrary, that the trap
had not yet been authorised, and acknowledging that approval for the electronic
monitoring of the transaction had not yet been granted, I do not consider that there
is a realistic prospect that the High Court in an appeal in the principal case would

26 Ibid para 26.
27 S v Tandwa [2007] ZASCA 34; 2008 (1) SACR 613 (SCA) para 121.
28 Singh para 22.

regard the extent of any resultant infringement of the appellant’s right to privacy
as weighing sufficiently against the public interest in the identification and arrest
of drug dealers.  Drug dealing is difficult to detect and investigate without the use
of entrapment.  It is notorious that the use of and trading in illicit narcotics is a
scourge in South African society, especially its most vulnerable and
disadvantaged sections.  This case is a far cry from cases such as Tandwa in which
it was held, hardly surprisingly, that incriminating evidence obtained consequent
upon a brutal assault of the accused should have been excluded by the trial court
in terms of s 35(5) of the Constitution.  In the current matter, by contrast, I do not
think it would be unduly dismissive of the appellant’s personal interests to
characterise his reliance on the lack of authorisation in the peculiar circumstances
of the case as opportunistically technical.
[31] For all the foregoing reasons I have concluded that the prospect of the trial
court’s decision to admit the evidence obtained through the use of entrapment
being reversed on appeal is nugatory.  I consider that it is unlikely that a court
seized of an appeal from the judgment of the trial court would find that the trap
had gone further than just affording the appellant the opportunity to commit the
offence.  Further, and in any event, the court considering the matter would very
probably nevertheless, after a consideration of the factors identified in s 252A(3),
conclude that the evidence was properly admitted.  These conclusions on the
appellant’s prospects of success weigh heavily against the granting of his
application for condonation.  It is impossible to conceive how the interests of
justice could be served by permitting the appellant, so many years after the
relevant events occurred and at a stage where he has long ago completed his
sentence, to take up judicial time and resources in a criminal justice system
notoriously plagued by backlog problems with a very stale appeal that has little
to no prospects of success.

[32] In the circumstances it is hardly necessary to consider the other factors that
are usually weighed in determining whether to grant condonation.  Having regard,
however, to the exceptionally long period that has intervened since the appellant’s
trial and the completion of his consequent term of imprisonment, it is nevertheless
meet to remark on the inadequacy of the appellant’s explanation of the
extraordinary delay.  The delay is of such an inordinate nature, that absent a very
good explanation or the pressing importance of the case, it would be sufficient to
refuse condonation even if the prospective appeal did enjoy realistic prospects of
success.
[33] An applicant for condonation is required to give a full and reasonable
explanation for the delay that has occurred, and that explanation must cover the
entire period of the delay, or at least account satisfactorily for the applicant’s
inability to do so.29  The appellant’s explanation for delays between 2011 and
2013 and the further period between 2013 and 2019 was woefully inadequate.
[34] As mentioned, he blamed his Legal Aid attorney for the inaction in the first
of those periods.  However, he provides no particularity whatsoever about his
interactions, if any, with the attorney directed at ensuring that a notice of appeal
was filed.  It is evident from the record that the appellant was no shrinking violet
when it came to dealing with his legal representatives.  He intervened repeatedly
from the dock during the conduct of his trial, much to the magistrate’s annoyance.
He was also aware, from the fact that he had required condonation for his
submission of his s 309C petition, of the importance of taking procedural steps
within the prescribed time limits.  The appellant managed to submit his petition
and make the attendant condonation application without legal representation.  He
does not present as someone who would not be capable, without assistance, of
ensuring that a notice of appeal was filed timeously or within a reasonable time

29 Van Wyk v Unitas Hospital, para 22; Laerskool Generaal Hendrik Schoeman v Bastian Financial Services (Pty)
Ltd [2009] ZACC 12; 2009 (10) BCLR 1040 (CC); 2012 (2) SA 637 (CC) para 15.

after the period for doing so had elapsed.  He has not explained why he did not
do so.
[35] The six-year delay between 2013 and 2019 was covered in a single
sentence of his supporting affidavit: ‘As a layman I tried to make progress in my
appeal’.  The lack of particularity could not be starker.  The appellant did add that
‘[a]t some stage part of the case record was missing and I struggled in getting a
complete record before court’.  He did not give any indication of when it was in
the 11-year chronology from the granting of leave that problems with assembling
the record were encountered, or when and how he resolved them.
[36] In the result, having regard to the poor prospects of success, the inordinate
delay and the grossly inadequate explanation of it, it would be inappropriate to
grant the appellant’s application for condonation.  The application consequently
falls to be refused and the appeal struck from the roll.
[37] In the circumstances, it is strictly speaking not necessary to say anything
about the application to lead further evidence, but I shall deal with it briefly
because it was argued by  the appellant’s counsel and accepted by counsel for the
state that even if we declined to entertain the application we should nevertheless
have regard to the additional evidence that the appellant sought to introduce for
the purpose of assessing his prospects of success in the contemplated appeal on
the merits to the High Court.  The application for leave to adduce further evidence
was directed firstly, at belatedly contradicting the state’s previously unchallenged
evidence that the entrapment had been authorised and secondly, to introduce
evidence that the secret electronic recording of the drug transaction had not yet
been authorised in terms of the IMPA when the transaction took place.  All of the
evidence concerned was documentary and it can be accepted for present purposes
that the three documents concerned were what they purported to be.

[38] The content of the two documents upon which the appellant sought to rely
to establish that the trap had not been authorised proved that application had been
made for authorisation and were inconclusive on whether it had been granted
before the trap was sprung.  For the reasons set out earlier in this judgment, the
issue of authority was a red herring in this case in that even if an absence of
authority had been established, that would not have improved the appellant’s
prospects of successfully overturning his conviction by way of achieving the
exclusion of the evidence against him obtained by his entrapment.
[39] The third document that the appellant sought to introduce as further
evidence purported to show that approval for the recording of the drug transaction
had been granted by the designated judge only on 27 January 2004.  In my
judgment, the absence of authorisation for the recording of the transaction, were
it established before the High Court sitting in an appeal, would be unlikely in the
circumstances to lead to the exclusion of the entrapment evidence.  The
consequent infringement of his right to privacy was not an egregious one.  It was
not of the nature against which s 2 of the IMPA was directed at protecting.30  On
the contrary, the communication concerned was one that, since the inception of
the IMPA’s replacement, the Regulation of Interception of Communications and
Provision of Communication-Related Information Act 70 of 2002, a law
enforcement officer has expressly been permitted to intercept in a case like this.31

30 Section 2 of the IMPA  provided (insofar as relevant):
‘Prohibition on interception and monitoring
(1) No person shall-
(a)   ..
(b)
intentionally monitor any conversation or communication by means of a monitoring device so as to gather
confidential information concerning any person, body or organization.
(2) Notwithstanding the provisions of subsection (1) or anything to the contrary in any other law contained, a
judge may direct that-
(a) …
(b) …
(c)
conversations by or with, or communications to or from, a person, body or organization, whether a
telecommunications line is being used in conducting those conversations or transmitting those
communications or not, be monitored in any manner by means of a monitoring device.’
31 Section 4(2) of the IMPA provides:
‘(2) Any law enforcement officer may intercept any communication if he or she is-
(a)
a party to the communication; and

The recording evidence was in any event merely corroborative of the trap’s oral
testimony. Its exclusion would not negate that testimony, which was sufficient
unto itself as a foundation for the appellant’s conviction.  The magistrate found
the evidence of the trap to be of ‘peak quality’.  It is trite that an appeal court does
not meddle readily in the credibility findings of a trial court.
[40] We raised with the appellant’s counsel whether the application to this
Court for the introduction of further evidence was in any event appropriate or
permissible, and whether the decision to admit further evidence should not in any
event be made to the appeal court (i.e. the High Court) if his appeal in this Court
were to succeed.  Section 309B(5) of the CPA permits an accused in the position
of the appellant to apply to adduce further evidence at the time he or she makes
application to the trial court for leave to appeal, and the High Court may, on
petition in terms of s 309C, reconsider any refusal of such application.  Section
316(5) is essentially an equivalent of s 309B(5) in respect of applications for
leave to appeal from trial judgments of the High Court.  Counsel were unable,
however, to direct our attention to any provision in the CPA that provided for an
application to adduce further evidence at the stage and in the form that the current
one was.
[41] The appellant’s counsel sought support in s 19 of the Superior Courts Act
10 of 2013.  That section, which resorts in Chapter 5 of the Act, provides for this
Court or a Division exercising appeal jurisdiction, in addition to any power as
may specifically be provided for in any other law, to receive further evidence or
remit the case to the court of first instance, or to the court whose decision is the
subject of the appeal, for further hearing, with such instructions as regards the

(b)
satisfied that there are reasonable grounds to believe that the interception of a communication of another
party to the communication is necessary on a ground referred to in section 16(5)(a),
unless such communication is intercepted by such law enforcement officer for purposes of committing an offence.’
(The grounds referred to in s 16(5)(a) include the belief that ‘a serious offence has been or is being or will probably
be committed’.  A contravention of s 5(b) of the Drugs and Drugs Trafficking Act is a ‘serious offence’ as defined
in s 1 of Act 70 of 2002.

taking of further evidence or otherwise as deemed necessary.  However, by virtue
of the definition of ‘appeal’ in s 1 of the Act, viz. ‘“appeal” in Chapter 5, does
not include an appeal in a matter regulated in terms of the Criminal Procedure
Act, 1977 (Act 51 of 1977), or in terms of any other criminal procedural law’,
s 19 is clearly not applicable.
[42] The predecessor to s 19 of the Superior Courts Act was s 22 of the Supreme
Court Act 59 of 1959.  The range of s 22 in respect of permitting further evidence
on appeal was not constricted in the manner effected by the definition of ‘appeal’
in the Superior Courts Act.  The evident intention of the definition of ‘appeal’ in
the Superior Courts Act was that appeal procedures in respect of criminal cases
should be regulated exclusively by the CPA or any other criminal procedural law.
An instance in which the High Court has heard further evidence on appeal in a
criminal matter subsequent to the commencement of the Superior Courts Act is
recorded in S v De Villiers,32 although no attention was given in that judgment to
the basis on which it had been able to do so.  The application by the accused in
that case was not opposed.33
[43] It is unnecessary for us to decide whether it would have been competent
for the High Court to allow further evidence on appeal to it in the current matter
had we granted leave to appeal.  Suffice it to say, however, that even had the
provisions of s 19 of the Superior Courts Act faithfully replicated those of its
predecessor, s 22 of the Supreme Court Act, I would have been reluctant to make
an order directing the High Court to allow the further evidence that the appellant
sought to introduce.  In my view, the decision whether to permit further evidence
on appeal, save as otherwise provided in s 309B, 309C and 316(5) of the CPA, is
one that should be made by the court seized of the appeal rather than by this Court
in an appeal as to whether leave to appeal should have been granted in terms of

32 S v De Villiers [2023] ZASCA 83; 2023 (2) SACR 221 (SCA) para 5.
33 De Villiers para 7.

309C.  This Court is, after all, not seized of the merits of the intended appeal.
Had it entertained the matter, it would have been concerned only with the
prospects of success, not with having to make a substantive determination on the
outcome of the principal case.
[44] For the reasons summarised earlier, the application to adduce further
evidence in this case in any event did not satisfy the general requirements for such
relief.34
[45] In the result, the following order is made:
1. The application for condonation is refused.
2. The appeal is struck from the roll.

A G BINNS-WARD
ACTING JUDGE OF APPEAL

34 See eg Rail Commuters Action Group v Transnet Ltd t/a Metrorail [2004] ZACC 20; 2005 (2) SA 359 (CC);
2005 (4) BCLR 301 (CC) paras 39-43; and S v De Jager [1965] 2 All SA 490 (A); 1965 (2) SA 612 (A) at 613B-
F.

Appearances:
Appellant’s counsel:

K F Pieterse
Appellant’s attorneys:

Legal Aid South Africa

Kimberley and Bloemfontein

Respondent’s counsel:

J J D Rosenberg

Directorate of Public Prosecutions,

Northern Cape.

Kimberley

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: 04 December 2023
Status: Immediate
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
Andrew Barney August v The State (962/2022) [2023] ZASCA 170 (04 December 2023)
___________________________________________________________________________
Andrew Barney August (the appellant) was convicted in the magistrates’ court, Kimberley, of
dealing in drugs in contravention of s 5(b) of the Drugs and Drug Trafficking Act 140 of
1992.  He was sentenced for four years’ imprisonment.  His application for leave to appeal
was refused, as was his subsequent petition to the High Court in terms of s 309C of the
Criminal Procedure Act 51 of 1977 (CPA).  On 10 March 2011 the Supreme Court of
Appeal (SCA) granted the appellant leave to appeal from the refusal of his petition to the
High Court.  The appellant failed, however, to file his notice of appeal timeously, doing so
only in 2022, by which time he had long since completed serving his term of imprisonment.
The appellant applied for condonation for his late noting of the appeal and also for the
admission of further evidence for the purpose of his appeal.
The SCA restated the factors that are generally taken into account in determining whether it
would be in the interests of justice to grant condonation.  In the current matter, the Court held
that because (i) the appellant did not enjoy realistic prospects of success in the appeal, (ii) his
explanation for the inordinate delay was inadequate, (iii) the case lacked materiality because
the appellant had already completed his sentence and (iv) the public interest in the finality of
litigation (including in criminal matters) it would not be in the interest of justice to grant
condonation.  Condonation was refused and the appeal was consequently struck from the roll.
In reviewing the appellant’s prospects of success the SCA considered the exclusionary rule in
respect of evidence obtained through entrapment, as provided for in s 252A of the CPA, and
also whether the evidence obtained against the appellant should be excluded in terms of
s 35(5) of the Constitution.  It held that the prospect of the exclusion of the evidence obtained
through the use of a trap in the current case was illusory.
The Court held that the appellant’s application to adduce further evidence on appeal did not
satisfy the established test for such applications.  It held further that the application could in
any event not be entertained in terms of s 19 of the Superior Courts Act, as contended by the

appellant’s counsel.  The Court pointed out that the definition of ‘appeal’ in s 1 of the
Superior Courts Act precluded the application of s 19 in a matter that is regulated by the
CPA.
--Ends--