CRIMINAL PROCEDURE – APPLICATION FOR DONDONATION FOR LATE FILLING OF LEAVE TO APPEAL

CRIMINAL PROCEDURE – APPLICATION FOR DONDONATION FOR LATE FILLING OF LEAVE TO APPEAL

The applicant was convicted on a count of murder and was sentenced to 20 years imprisonment on 10 December 2020. He appealed against his conviction, but it was dismissed on 08 April 2022. The applicant filed an application for leave to appeal out of time on 11 May 2022, thus an application for condonation with supporting affidavit was also filed.

JANUARY J (CLAASEN J concurring) considered the matter thus:

‘[3]         It is trite that an applicant has to satisfy two pertinent requirements, firstly, that he has to provide a reasonable and acceptable explanation for the late filing of the main application (for leave to appeal); secondly, the applicant has to show that he has prospects of success on appeal. In addition, the courts have elucidated certain principles as regards condonation applications which, inter alia, are the following:

1. a) Where the explanation proffered is not reasonable, but an applicant enjoys prospects of success on appeal, a court may condone the non-compliance.
2. b) Where the applicant’s non-compliance is found to be a flagrant disregard of the rules of court, a court need not consider the prospects of success on appeal.
3. c) If prospects of success on appeal are non-existent, it matters not whether there is a reasonable explanation or not, the application will be refused.

The applicant provided an explanation which was accepted by court, but he still had to prove that he had prospects of success. Having given considerable thought objectively to the application, the appeal court came to the conclusion that there was no reasonable doubt concerning the guilt of applicant. The appeal court was not convinced that the Supreme Court may take a different view about the guilt of the applicant on the offence as charged.’

As a result, the application for condonation was refused and the matter was struck from the roll.

Ndukireepo v S NAHCMD 7 November 2022