THE SUPREME COURT OF APPEAL OF SOUTH AFRICA

JUDGMENT

Not Reportable
Case No: 530/2017

In the matter between:

MUSTAQH SAYED                                                         FIRST APPELLANT
AASIM COTWELL                                                     SECOND APPELLANT
MOHAMED RAWAT                                                     THIRD APPELLANT
and

THE STATE
RESPONDENT

Neutral citation: Sayed v The State (530/2017) [2017] ZASCA 156 (24
November 2017)

Coram:
Ponnan, Petse, Willis JJA and Lamont and Schippers AJJA

Heard:

1 November 2017

Delivered:
24 November 2017

Summary: Condonation and reinstatement of lapsed appeal – explanation for
delay in lodging notice of appeal and appeal record inadequate – delay extreme and
explanation unacceptable – condonation refused – special plea of autrefois acquit
and application to stay prosecution - no prospect of success – conduct of judicial
officer - must be seen to be independent and impartial and treat persons with
civility and courtesy – referred to Magistrate’s Commission.

__________________________________________________________________

ORDER
__________________________________________________________________

On appeal from: Gauteng Division of the High Court, Pretoria (Pretorius and
Bam JJ sitting as Court of Appeal):
‘1 The application for condonation is dismissed.
2 The Registrar is directed to forward a copy of this judgment to the Magistrate’s
Commission and to the President of the Regional Court for Benoni.’
__________________________________________________________________
JUDGMENT
__________________________________________________________________

Schippers AJA (Ponnan, Petse and Willis JJA and Lamont AJA concurring):

[1] This appeal lapsed for failure on the part of the appellants to timeously
prosecute it. The initial question before us is whether such failure should be
condoned and the appeal reinstated.

Facts
[2] The appellants were convicted in the regional court Benoni, of murder,
attempted murder and two counts of kidnapping in 2006. Their case was referred to
the North Gauteng High Court, Pretoria (the high court), for sentence in terms of
the former s 52 of the Criminal Law Amendment Act 105 of 1997 (the Act).
Section 52(1) provided that if a regional court, after it had convicted an accused of
an offence referred to in Schedule 2 to the Act, was of the opinion that such

offence merited punishment in excess of its jurisdiction under s 51, the court shall
stop the proceedings and refer the accused to the high court for sentence.1

[3] In July 2009 the case came before Louw J in the high court. The learned
judge requested a statement from the regional magistrate setting out her reasons for
the convictions, as contemplated in s 52(3)(b) of the Act.2 After considering the
regional magistrate’s statement, Louw J set aside the convictions on the basis that
the proceedings in the regional court were irregular and not in accordance with
notions of basic fairness and justice guaranteed by the Constitution.3

[4] In November 2010 fresh charges were preferred against the appellants on the
original complaint in the regional court, Benoni (the second trial). In that trial they
raised a special plea of autrefois acquit and applied for a permanent stay of
prosecution. The regional court dismissed the special plea on the grounds that the
appellants were not acquitted on the merits of the case against them; and refused a
stay of prosecution on the ground that they did not suffer irreparable prejudice. The
appellants were granted leave to appeal to the high court.

1 Section 52(1) provided:
‘(1) If a regional court, after it has convicted an accused of an offence referred to in Schedule 2 following on-
(a) a plea of guilty; or
(b) a plea of not guilty,
but before sentence, is of the opinion that the offence in respect of which the accused has been convicted merits
punishment in excess of the jurisdiction of a regional court in terms of section 51, the court shall stop the
proceedings and commit the accused for sentence by a High Court having jurisdiction.
2 Section 52(3)(b) provided:
‘The High Court shall, after considering the record of the proceedings in the regional court, sentence the accused,
and the judgment of the regional court shall stand for this purpose and be sufficient for the High Court to pass
sentence as contemplated in section 51: Provided that if the judge is of the opinion that the proceedings are not in
accordance with justice or that doubt exists whether the proceedings are in accordance with justice, he or she shall,
without sentencing the accused, obtain from the regional magistrate who presided at the trial a statement setting
forth his or her reasons for convicting the accused.’
3 In terms of s 52(3)(e)(iv) the high court, after it had considered the statement by the magistrate, was authorised,
inter alia, to set aside the conviction.

[5] The court a quo (Pretorius J and Kganyago AJ) dismissed the appeal. It held
that the magistrate had correctly rejected the plea of autrefois acquit because Louw
J had set aside the appellants’ convictions solely on account of the irregularities in
their trial in 2006, not on the merits of the case; and that there were no
extraordinary circumstances warranting a stay of prosecution.

[6] The appellants then applied to this Court for special leave to appeal, which
was granted on 9 September 2014. In terms of rule 7(1) of the rules of this Court,4
the appellants were required to lodge their notice of appeal within one month after
they were granted leave to appeal. Under rule 8(1) they had to lodge the record
within three months of delivery of the notice of appeal. They lodged the notice and
the record of proceedings (which in this case consisted only of 250 pages) only on
31 May 2017, more than two years later. By then the appeal had lapsed.5

The applications for condonation
[7] The appellants brought two applications for condonation for the late filing of
the appeal record and the notice of appeal. The Director of Public Prosecutions
(DPP) opposed the application to condone the late filing of the record. The second
application for condonation was not opposed.

[8] The observation of  Heher JA in Uitenhage Transitional Local Council v
South African Revenue Service6 regarding the requisites for condonation, is
particularly apposite:

4 Rules Regulating the Conduct of the Proceedings of the Supreme Court of Appeal of South Africa, 27 November
1998 as amended.
5 Rule 8(3) provides that if an appellant fails to lodge the record within the prescribed period, the appeal shall lapse.
6 Uitenhage Transitional Local Council v South African Revenue Service 2004 (1) SA 292 (SCA) para 6.

‘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.’

[9] The factors which a court considers when exercising its discretion whether
to grant condonation, include the degree of non-compliance with the rules, the
explanation for it, the importance of the case, the respondent’s interest in the
finality of the judgment of the court below, the convenience of the court and the
avoidance of unnecessary delay in the administration of justice.7

[10] The applications for condonation are hopelessly deficient: there is no
detailed account of the causes of delay and long periods of time during which
nothing was done in preparation of the appeal (ranging from three months to one
year) are unexplained. To begin with, the applications for condonation of the late
filing of the record and the notice of appeal, were brought only on 17 March 2017
and 11 May 2017, respectively. It is settled that an appellant must apply for
condonation without delay whenever he realises that he has not complied with a
rule of this Court.8 Why the applications for condonation were brought at such a
late stage, has also not been explained.

7 Dengetenge Holdings (Pty) Ltd v Southern Sphere Mining and Development Company Ltd & others [2013]
ZASCA 5; [2013] 2 All SA 251 (SCA) para 11.
8 Ibid para 13; Darries v Sheriff, Magistrate’s Court Wynberg & another 1998 (3) SA 34 (SCA) at 40I-41E;
Comissioner, South African Revenue Service v Van Der Merwe 2016 (1) SA 599 (SCA) paras 11 and 12.

[11] The appellants’ attorney, Mr C Botha, has done nothing in the preparation of
the appeal, nor furnished any explanation for the causes of the delay. Instead, he
abdicated that responsibility to Ms M P Jiyane, an administrative assistant in his
employ. Ms Jiyane deposed to the founding affidavit in each of the condonation
applications and said that her duties ‘are to oversee and to administer all matters
regarding the . . . appeal’. All the steps taken to compile the record were done by
the appellants’ counsel, Mr H F Klein.

[12]  The explanation for the delay in Ms Jiyane’s affidavit is the following.
Shortly after receiving the order granting leave to appeal (dated 9 September
2014), a quotation to compile the record was sought. Mr Klein decided which
documents should form part of the record and handed them to the transcribers who
informed him that the parties had to agree to the documents that should be included
in the record. No details were given as to when this was done.

[13] Nearly six months later, on 4 March 2015, a delay which is unexplained, Mr
Klein had a meeting with Mr G Maritz of the DPP and it was agreed that the third
appellant’s attorney should also be involved in the preparation of the record. On 2
April 2015 a letter to that effect was written to the third appellant’s attorney and on
4 May 2015 the contents of the record were finalised between the parties, including
Mr Louw, for the third appellant. It took three months to decide what documents
should form part of a 250-page record.

[14] On 19 May 2015 Mr Klein wrote to the DPP to enquire if the State’s only
eyewitness, a Mozambican citizen, had absconded; and whether the trial would
proceed. On 12 August 2015 the DPP advised the appellants’ attorneys that the
witness was available and would testify. The appellants have not given any

indication of the steps taken, if any (for nearly three months), to ascertain from the
DPP whether the trial would proceed.

[15] Another two months went by and, on 16 October 2015, Mr Klein and Mr
Maritz signed a ‘memorandum of agreement’ in terms of which they agreed to
limit the appeal record. This, despite the fact that the contents of the record had
already been finalised between the parties on 4 May 2015. There is no explanation
for the delay between 12 August 2015 and 16 October 2015 (two months). A ‘year
later’ (in October 2016), Ms Jiyane says that they amended the memorandum of
agreement, by which time the record had still not been lodged.

[16] Ms Jiyane’s affidavit is silent as to when the documents comprising the
record were given to the transcribers. There is thus no explanation for the delay
between 4 May 2015 (when the contents of the record had been finalised) and
January 2016 – a period of eight months - when Mr Klein collected the record from
the office of the Legal Aid Board, Pretoria.

[17] When Mr Klein fetched the record from the Legal Aid Board in January
2016, he kept a copy for himself and Mr Louw, and handed the remaining copies to
Ms Jiyane. She kept them in her office until September or October 2016 (at least
nine months) when Mr Klein collected them. This delay also, is not explained. Ms
Jiyane says that shortly after receiving the record (again, no details are given), ‘Mr
Klein realised that the record was not the record he requested from the
Transcribers’, and asked her not to send it to their correspondent attorneys in
Bloemfontein.

[18] The transcribers took about two weeks to compile the record, between 21
October 2016 and 3 November 2016, when they certified it as being correct. Once
again, there is no explanation for a delay of some seven months - between 3
November 2016 when the record was completed and 31 May 2017 - when it was
eventually filed. Even after those long delays, a proper record of the proceedings
was not lodged.  Important documents (such as the record of postponements in the
regional court and the judgment by the regional magistrate in the first trial) were
not included in the record; and documents which should not have formed part of
the record, such as heads of argument and counsel’s address, were included.

[19] I come now to the application for condonation of the late filing of the notice
of appeal. Ms Jiyane gave a single reason for the late filing of the notice. It is this:
‘[W]e were under the erroneous impression that the application for leave to appeal
filed in the High Court Appeal, was sufficient.’ This is not an explanation, let alone
a satisfactory one, for the delay in filing the notice. Of course, had Mr Botha
simply read the rules when leave to appeal was granted, he would have known
precisely when the notice of appeal and the record had to be filed. An attorney
instructed to note an appeal is required to acquaint himself with the rules of the
court in which the appeal is to be prosecuted.9 The notice of appeal was not lodged
timeously because Mr Botha neglected his duties to the court and his clients, and
left the matter entirely in the hands of an administrative assistant, who evidently
has no legal training.

[20] Further, the late filing of the record and notice of appeal has a direct impact
upon the respondent’s interest in the finality of the judgment by the court a quo.
Here the appellants are facing serious criminal charges in the regional court, the

9 Ferreira v Ntshingila 1990 (4) SA 271 (A) at 281F-G.

judgment in favour of the respondent concerns a special plea and a refusal to stay a
prosecution and not the merits of the matter, and both the Constitution and the
interests of justice require that the pending case against them be finalised
expeditiously.

[21] Ms S Fisher-Klein, who appeared for the appellants, rightly conceded that
there has been a flagrant disregard of the rules, but submitted that non-compliance
with the rules by the attorney should not be laid at the door of the appellants. The
dictum of Steyn CJ in Salojee,10 provides a complete answer to this submission:
‘I should point out, however, that it has not at any time been held that condonation will not in
any circumstances be withheld if the blame lies with the attorney. There is a limit beyond which
a litigant cannot escape the results of his attorney’s lack of diligence or the insufficiency of the
explanation tendered. To hold otherwise might have a disastrous effect upon the observance of
the Rules of this Court. Considerations ad misericordiam should not be allowed to become an
invitation to laxity. In fact this Court has lately been burdened with an undue and increasing
number of applications for condonation in which the failure to comply with the Rules of this
Court was due to neglect on the part of the attorney. The attorney, after all, is the representative
whom the litigant has chosen for himself, and there is little reason why, in regard to condonation
of a failure to comply with a Rule of Court, the litigant should be absolved from the normal
consequences of such a relationship, no matter what the circumstances of the failure are.’

[22] Moreover, this Court has held that in cases of flagrant breaches of the rules,
especially in the absence of an acceptable explanation, condonation may be refused
regardless of the merits of the appeal; this applies even where the blame lies solely
with the attorney.11

10 Salojee & another, NNO v Minister of Community Development 1965 (2) SA 135 (A) at 141B-E.
11 Tshivhase Royal Council & another v Tshivhase & another; Tshivhase & another v Tshivhase & another 1992 (4)
SA 852 (A) at 859E-F.

[23] Although this is a case where condonation could justifiably be refused
irrespective of the merits of the appeal, we nevertheless invited Ms Fisher-Klein to
address us on the merits of the appeal so as to enable us to assess its prospects of
success.

[24] As already stated, in the second trial the appellants raised the plea of
autrefois acquit, namely that they had already been acquitted of the offences with
which they were charged, as contemplated in s 106(1)(d) of the Criminal Procedure
Act 51 of 1977.12 The rule against double jeopardy is enshrined in s 35(3)(m) of the
Constitution, which states that every accused person has a right to a fair trial,
which includes the right not to be tried for an offence for which that person has
previously been either acquitted or convicted.13

[25] More than 80 years ago, in Manasewitz,14 Stratford JA held that the
requisites for a plea of autrefois acquit are that the accused must have been tried
previously on the same charge by a court of competent jurisdiction and acquitted
on the merits. This holding has been affirmed by the Constitutional Court as
follows:
‘The requirement that the previous acquittal must have been on the merits, or to put it differently,
that the accused must have been in jeopardy of conviction, means that, if the previous
prosecution was vitiated by irregularity, then it cannot found a plea of autrefois acquit in a
subsequent prosecution. That is because the accused was not acquitted on the merits and was
never in jeopardy of conviction because the proceedings were vitiated by irregularity.’15

12 Section 106(1)(d) reads:
‘(1) When an accused pleads to a charge he may plead-
….
(d) that he has already been acquitted of the offence with which he is charged;’
13 S v Basson 2007 (1) SACR 566 (CC) para 250.
14 R v Manasewitz 1933 AD 165.
15 Basson fn 13 para 255, citing The State v Moodie 1962 (1) SA 587 (A) at 595F-596F.

[26] This is such a case. Louw J held that the proceedings were not in accordance
with justice because of the conduct of the regional magistrate, Ms E Schutte, more
particularly in the following respects. The regional magistrate required a trial
within a trial to establish whether witness statements were read by, or read back to,
the relevant deponent, before the defence could cross-examine on those statements.
She had repeatedly interjected during the presentation of evidence, took over the
questioning and made inappropriate comments on the value of the evidence whilst
it was being adduced. In the course of the proceedings the regional magistrate
indicated that she had already made up her mind as to the injuries sustained by the
complainant.

[27] The regional magistrate almost immediately took over the questioning of Mr
Sayed, the first appellant, during his evidence in chief. His cross-examination
covered some 44 pages, in which there were 93 interruptions by the magistrate.
When Mr Sayed, who is Muslim, testified, the regional magistrate questioned him
and then sarcastically remarked: ‘I think I should go to a mosque okay.’ The
regional magistrate also took over the examination of deceased’s wife, to the point
that the prosecutor remarked that he could not compete with the court.

[28] The regional magistrate appears to have prejudged the evidence of a police
officer when, in the course of his evidence, she said:
‘No, listen, listen you know what sir I hope to God that you do something else but investigate or
attend scenes you are not being coerced, the point is I am telling you and Mr Botha [the defence
attorney] will tell you that on the evidence it is common cause between the state and the defence
you are wrong full stop.’

[29]  Louw J held that a reasonable person ‘would infer bias as the most likely
reason for the regional court magistrate’s unwarranted findings, utterances and her
judicial impatience and intolerance’; and concluded that in the light of the
extensive nature of the irregularities, the convictions had to be set aside. The
following statement by Louw J, namely, ‘I do not give judgment on the merits of
the case’, places it beyond question that the appellants’ convictions were not set
aside on the basis of any finding on the merits, but on account of the irregularities
in the proceedings before the regional court which were so gross that they rendered
the entire trial invalid. This Court has held that in such a case, the conviction is set
aside without reference to the merits and the accused can be retried.16

[30] For the above reasons the appellants’ plea of autrefois acquit, in my opinion,
has no prospect of success in the appeal.

[31] As to the stay of prosecution, the appellants contended that the court a quo
erred in not finding that a cumulative time-lapse of nine years was so unreasonable
as to warrant a stay of prosecution. That, however, does not paint the true picture
and ignores the following facts. The proceedings in the regional court ran over
three years, during which there was no unreasonable delay. Additional time was
taken with obtaining the s 52 statement from the regional magistrate; and the
appellants were subsequently acquitted because of gross irregularities which
rendered their entire trial invalid. The appellants were released on bail and
consequently suffered no prejudice.

[32] Indeed, it is the appellants’ case that unreasonable delays were caused by
postponements in the high court since their first appearance on 22 August 2007

16 The State v Naidoo 1962 (4) SA 348 (A) at 354D-E.

until Louw J delivered judgment on 25 September 2009; and that this was ‘the
most expensive period’ during which three advocates were engaged for five days.
In this regard the appellants relied upon the right to a fair trial in terms of s 35(3)
of the Constitution, which includes the right to a speedy trial (s 35(3)(d)) and the
right to a legal practitioner of their choice (s 35(3)(f), seemingly on the basis that
the appellants may run out of funds and will have to be assisted by the Legal Aid
Board.

[33] On the totality of the evidence, I do not consider that the delays in the high
court justify a stay of prosecution. The case could not be heard on 22 August 2007
due to an overcrowded roll. It was postponed to 14 April 2008, 12 May 2008, 13
October 2008 and 14 April 2009 because the record was not in the court file. The
judge who had to hear the case on 14 April 2009 recused himself because he knew
the regional magistrate too well. Louw J heard the case on 27 July 2009 and
requested the regional magistrate to furnish reasons for the conviction. The case
was postponed to 21 August 2009 and judgment was delivered on 25 September
2009. The appellants were not prejudiced at all, on the contrary their convictions
were set aside.

[34] The decision to retry the appellants was made in October 2009. There is no
explanation as to why the second trial commenced a year later, on 1 November
2010. The appellants were given written notice to appear and released on warning.
The trial was delayed because in March 2011 the appellants made representations
to the DPP to withdraw the charges against them. On 31 May 2011 their attorney
was informed that the representations were unsuccessful. Thereafter, the appellants
sought an order in the high court ‘requesting Judge Louw to amend, change or
supplement his judgement [as to] whether the merits were indeed considered by

him’. On 14 February 2012 the appellants withdrew that application and
subsequently requested the trial court to postpone the case to 31 May 2012.

[35] On 31 May 2012 the plea of autrefois acquit and the application for a stay of
prosecution were argued in the regional court. Judgment was delivered on 14
September 2012 and thereafter the appellants were granted leave to appeal to the
high court, which dismissed the appeal on 8 November 2013. Subsequently, on 9
September 2014 this Court granted the appellants special leave to appeal.

[36] So, from the date of their first appearance in the second trial, the delays in
the finalisation of that trial were caused solely by the appellants, as a result of their
representations to the DPP, their application for the clarification of the order of
Louw J and the appeals pursuant to the dismissal of the plea of autrefois acquit and
their application for a stay of prosecution.

[37] In these circumstances, an application for a stay of prosecution is simply
unjustified. The appellants have been charged with very serious crimes: murder,
attempted murder and two counts of kidnapping. As the Constitutional Court has
held, barring a prosecution before a trial begins, without any opportunity to
ascertain the real effect of a delay on the outcome of the case is far-reaching as ‘it
prevents the prosecution from presenting society’s complaint against an alleged
transgressor of society’s rules of conduct.’ Such radical relief will seldom be
justified in the absence of significant prejudice to the accused.17

17 Sanderson v Attorney General, Eastern Cape 1998 (1) SACR 227 (CC) para 38; Zanner v Director of Public
Prosecutions, Johannesburg 2006 (2) SACR 45 (SCA) para 10.

[38] Although there was some delay in the high court between August 2007 and
September 2009, the appellants were not prejudiced by the delay; and they suffered
no prejudice as a result of the delays pursuant to the second trial. And the
circumstances of their case are nowhere near extraordinary to justify a stay of their
prosecution.18

[39] In my view, the application for a stay of prosecution likewise has no
prospects of success on appeal.

[40] It follows that the only appropriate order in the circumstances, is one
dismissing the application for condonation of the late filing of the appeal record.

[41]  What remains is the unjudicial conduct of the regional magistrate. I have
referred above to the irregularities which Louw J found evinced bias on the part of
the regional magistrate. This led to a miscarriage of justice where the appellants
had been convicted of serious charges. What is more disturbing is that the
appellants’ case was not the first in which the regional magistrate has displayed
such conduct: three appellate courts, including this Court, have found that she
behaved in a manner unbecoming a judicial officer.19

[42] In Ndlangamandla,20 the high court found that neither the prosecutor nor the
defence were given an opportunity to present evidence in a manner they considered
appropriate because the regional magistrate constantly descended into the arena.
She behaved in an ‘irritable, derogatory and outrageous manner’; she was

18 Wild & another v Hoffert NO & others 1998 (2) SACR 1 (CC) para 27.
19 Ndlangamandla v S (SH 665/08) [2010] ZAGPPHC 64 (14 July 2010); Smith v S (595/2012) [2013] ZASCA 38
(28 March 2013); S v Phiri 2008 (2) SACR 21 (T).
20 Ndlangamandla fn 23.

discourteous to all officials, parties and witnesses, and hurled insults with
impunity. The court noted that the regional magistrate had contemptuously ignored
its admonishments in the past.21

[43] This Court in Smith,22 found that the regional magistrate was rude to the
prosecutor, the witnesses, the appellant in that case, and his attorney. She
interfered with the presentation of the case. She did not treat the officers of the
court, the witnesses or the appellant with dignity. Her interjections ‘were often
derogatory and insulting and sometimes nonsensical.’23

[44] In Phiri24 the court observed:
‘The trial is fraught with serious irregularities impacting the core of the proper administration of
justice. The said irregularities are manifested by the manner of criticising the police, the
prosecution, the defence and this court. Ms … has been called stupid, the public prosecutor is
directed to watch TV and DSTV on channel 69, and she was also given lessons on how to
conduct the prosecution during court proceedings. From the record nearly every arm of the court
is labelled incompetent. I must remark, as I hereby do, that such conduct is unbecoming and
should be discouraged at all costs. Discourtesy to witnesses cannot be condoned as well as
insults hurled with impunity in facie curiae.’25

[45] The conduct of the regional magistrate erodes public confidence in the
judicial system. Ngcobo CJ put it this way:
‘In my view it is fundamental to our judicial system that judicial officers are not only
independent and impartial, but that they are also seen to be independent and impartial. Civility
and courtesy should always prevail in our courts. Litigants should leave our courts with a sense

21 Ibid paras 13-14.
22 Smith fn 23.
23 Ibid para 18.
24 Phiri fn 23.
25 Phiri fn 23 at 25I – 26A.

that they were given a fair opportunity to present their case. This is crucial if public confidence
in the judicial system is to be maintained. And public confidence in the judicial system is
essential to the preservation of the rule of law, which is so vital to our constitutional democracy.
Therefore, legal representatives should not stand by as spectators over what may convey an
impression of bias. They should raise any objection as soon as reasonably practicable. This will
allow the judicial officer to explain his or her behaviour and, if necessary, correct that behaviour.
Judicial officers, it must be remembered, are only human. This will make our courts vigilant of
their behaviour and ensure that they prevent behaviour that may create an apprehension of
bias.’26

[46]  In the circumstances, we have no alternative but to again refer the regional
magistrate’s conduct to the Magistrate’s Commission and the President of the
Regional Court, Benoni, in the hope that they will urgently take steps to avoid a
recurrence of the unjudicial conduct displayed by the regional magistrate.

[47] The following order is made:
‘1 The application for condonation is dismissed.
2 The Registrar is directed to forward a copy of this judgment to the Magistrate’s
Commission and to the President of the Regional Court for Benoni.’

_________________
A Schippers
Acting Judge of Appeal

26 Bernert v Absa Bank Ltd [2010] ZACC 28; 2011 (3) SA 92 (CC) para 98.

Appearances
For Appellant:
S F Fisher-Klein
Instructed by:
Botha Attorneys, Johannesburg
Honey Attorneys, Bloemfontein

For Respondent:

G J C Maritz
Instructed by:
Director of Public Prosecutions, Pretoria
Director of Public Prosecutions, Bloemfontein