Andrew Barney August v The State

The appellant was convicted in the Kimberley Magistrates’ Court in 2006 for dealing in drugs (100 Mandrax tablets) under s 5(b) of the Drugs and Drug Trafficking Act 140 of 1992 and sentenced to four years’ imprisonment, which he served. The conviction was based entirely on evidence obtained through a police entrapment operation in which he sold drugs to an undercover agent. His applications for leave to appeal were refused by the trial court and, on petition under s 309C of the Criminal Procedure Act 51 of 1977, by the Northern Cape High Court. Although the Supreme Court of Appeal granted leave to appeal in 2011, the appellant failed to prosecute the appeal timeously. More than a decade later he sought condonation for the late filing of his notice of appeal and leave to adduce further evidence, contending that the entrapment evidence should have been excluded.

The application for condonation was refused and the appeal was struck from the roll.

The case reinforces the strict requirements for condonation in criminal appeals, especially where there has been an extreme delay and little practical effect. It provides a detailed restatement of the law on entrapment under s 252A of the Criminal Procedure Act and clarifies that entrapment is not a substantive defence but an evidentiary issue governed by an exclusionary discretion. The judgment also confirms that s 19 of the Superior Courts Act does not apply to criminal appeals regulated by the CPA.