Sayed v The State

The appellants were convicted in 2006 in the Benoni Regional Court of murder, attempted murder and two counts of kidnapping. Their matter was referred to the High Court for sentence under s 52 of the Criminal Law Amendment Act 105 of 1997. In 2009, Louw J set aside the convictions due to serious procedural irregularities and apparent bias by the regional magistrate, without deciding the merits. Fresh charges were instituted in 2010. In the second trial, the appellants raised a special plea of autrefois acquit and applied for a permanent stay of prosecution. Both were dismissed by the regional court and, on appeal, by the Gauteng Division of the High Court. The appellants obtained special leave to appeal to the Supreme Court of Appeal but failed for more than two years to timeously lodge the notice of appeal and the appeal record, causing the appeal to lapse. They applied for condonation and reinstatement of the appeal.

The application for condonation was dismissed and the appeal was not reinstated. The Registrar was directed to forward a copy of the judgment to the Magistrate’s Commission and to the President of the Regional Court for Benoni.

The case reaffirms the strict approach of the Supreme Court of Appeal to condonation applications, emphasising that flagrant non-compliance with procedural rules, coupled with inadequate explanations, will not be excused even in serious criminal matters. It clarifies that a conviction set aside for procedural irregularities does not found a plea of autrefois acquit and that retrial is permissible. The judgment also underscores the high standards of independence, impartiality and courtesy required of judicial officers, and the mechanisms for accountability through referral to the Magistrate’s Commission.