Andrew Barney August vs. The State - (04 Dec 2023)

An applicant for condonation is required to give a full and reasonable explanation for the delay that has occurred, and explanation must cover the entire period of the delay

Criminal

The Appellant was convicted in the magistrates’ court, Kimberley, of dealing in drugs in contravention of Section 5(b) of the Drugs and Drug Trafficking Act, 1992. He was sentenced for four years’ imprisonment. His application for leave to appeal was refused.

Supreme Court 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.

In reviewing the appellant’s prospects of success, present Court considered the exclusionary rule in respect of evidence obtained through entrapment, as provided for in Section 252A of the CPA, and also whether the evidence obtained against the appellant should be excluded in terms of Section 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 Section 19 of the Superior Courts Act, as contended by the appellant’s counsel.

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. The appellant’s explanation for delays between 2011 and 2013 and the further period between 2013 and 2019 was woefully inadequate. The application for condonation is refused.

Tags : NOTICE OF APPEAL LATE FILING CONDONATION