Delayed appeal to be probed

A Pietermaritzburg High Court judge has ordered the prosecutions authority to investigate the reasons for a seven-year delay for an appeal to be set down, and to furnish him with its findings.

In addition, Judge Kevin Swain wants the director of public prosecutions to outline what steps would be taken to prevent a recurrence of such a delay in setting down criminal appeals.

The judge’s ruling was contained in a reserved judgment handed down yesterday on Sumenthen Pillay’s appeal on sentence.

Pillay, a former practising attorney who pleaded guilty in March 2005, was convicted of theft for stealing R207 546 29 from a trust fund and sentenced to six years’ imprisonment, three of which were suspended. Judge Swain yesterday suspended the entire sentence for three years. Attempts by Pillay to expedite his appeal had done nothing to speed up the process.

Judge Swain commented that what this revealed was a “damning indictment of the criminal justice system”.

“An inordinate delay of seven years in setting down the present appeal is inexcusable, and is aggravated by the failure of the respondent (the State) to even attempt to explain the delay, by filing no affidavits in respect to the appellant’s (Pillay’s) appeal,” he said.

The State advocate who had argued the appeal was unable to offer any explanation for the delay, stating that when he enquired from the registrar of the criminal appeals section, he was told the reason was that the file could not be located, the judge said.

In the appeal, Pillay’s legal representative had argued that by virtue of the delay of seven years since the sentence was passed, exceptional or peculiar circumstances now existed that justified the court’s revisiting the sentence.

Judge Swain said that an important factor in considering the cause for the delay was whether or not Pillay had taken steps to expedite the matter, which the judge found he had. The court had also heard that Pillay maintained that he had carried out his work competently and diligently.

During the seven-year wait, Pillay had obtained several tertiary qualifications. It was argued on his behalf that he was no longer the man that he had been, and that he understood the error of his ways.

Also, Pillay had every intention of paying back the stolen money, and had paid back R67 000 to date.

Judge Swain referred the case to the registrar of criminal appeals at the court for investigations into the cause of the appeal’s being delayed.