Henry Malgas and Others v The State

The appellants were police officers (or former officers) convicted in the Regional Court, Beaufort-West on 5 November 2002 for housebreaking with intent to steal dagga from the police station exhibits storeroom and theft of dagga from a police vehicle on police premises. The first appellant was a police inspector with 16 years of service, the second a constable, the third a discharged police officer, and the fourth a civilian. Offences were committed on 12 November 1999 and 10 January 2000. They were sentenced on 6 March 2003 to imprisonment ranging from 8 to 12 years. Despite the magistrate refusing bail pending appeal, all appellants were granted bail shortly thereafter by an unknown authority. The appeal to the Western Cape High Court was only heard on 3 June 2011 - approximately 8 years later. The High Court dismissed appeals against conviction but reduced sentences for the first and second appellants from 10 to 8 years. None of the appellants had been in custody for more than a few months. The record had to be reconstructed as the original docket, magistrate's notes and exhibits went missing. There was no explanation on record for the delay between 2003 and 2009.

• Whether the lengthy delay of approximately 10 years between sentencing and the final appeal constitutes an exceptional circumstance justifying interference with the sentence
• Whether delay attributable to the inertia and supine attitude of appellants themselves can constitute grounds for reducing sentence
• What the responsibilities of appellants and their legal representatives are in prosecuting appeals timeously
• Whether appellants granted bail pending appeal who fail to prosecute their appeals diligently should benefit from the delay they caused

The appeal against sentence was dismissed. All appellants were ordered to commence serving their sentences as confirmed or reduced by the High Court below.

Long delay between sentencing and appeal hearing does not automatically justify interference with sentence. Where delay is attributable to the appellants' own inertia and failure to prosecute their appeal diligently, this cannot constitute an exceptional circumstance warranting reduction of sentence. Appellants who have been granted bail pending appeal and who adopt a supine attitude to prosecuting that appeal cannot benefit from the delay they have caused. The ultimate responsibility for ensuring the record is properly before the court and for prosecuting the appeal rests on the appellant or their legal representative (Rule 51(3) of the Uniform Rules). To treat such cases as exceptions would undermine the administration of justice. Each case must be decided on its own facts.

The court made several non-binding observations: (1) It commented that bail after conviction should be approached with caution, noting the magistrate's prescient observation that granting bail might cause 'die hele huis van kaarte inmekaar te laat val'. (2) The court observed a recurring phenomenon of inertia descending upon appeals once bail is granted post-conviction, describing this as occurring 'with increasing frequency, especially in certain parts of the land' and noting that 'the clouds have been accumulating ominously, like a storm which is gathering momentum'. (3) The court emphasized the symbolic importance of police stations alongside town halls and magistrates' courts, particularly in rural areas (the platteland), as symbols of law and order in a democratic state. (4) The court noted it had 'anxiously reflected upon the needs of justice' including 'the requirement that this court should show mercy to and compassion for our fellow human beings'.

This judgment establishes important principles regarding delay in criminal appeals where appellants are on bail. It confirms that delay alone does not automatically warrant reduction of sentence, particularly where the delay is attributable to the appellant's own inaction. The case serves as a warning against the growing phenomenon of inertia in prosecuting appeals after bail is granted post-conviction. It reinforces that appellants and their legal representatives bear responsibility for timeously prosecuting appeals and cannot benefit from delays of their own making. The judgment also emphasizes the seriousness of crimes committed by police officers, particularly those occurring within police precincts as violations of symbols of law and order in a democratic state.