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How can a prisoner who was assigned the wrong case number appeal their sentence?

The short answer

You need to contact a lawyer.

The whole question

Dear Athalie

My cousin, Thabo*, was arrested without bail in 2011 until his trial in 2013. He was sentenced to 25 years for murder and robbery. In 2013, he tried to appeal the sentence because he said that he was not guilty of the crimes. However, he was unsuccessful because the case number he was assigned belonged to someone else who died in prison in 2011. When the case number is searched on the system, the deceased's name comes up, not my cousin's. He believes that the jail itself changed his case number.

Thabo is therefore not on the system: he does not have a record, a case number or a file but he is still in prison. Legal Aid said that they could not help us because they could not retrieve the correct case number due to a court server crash. But there is a letter from the CMA manager, Mr Padaychee, that says the case number should have ended in a "P" not a "D".

We can't afford a private lawyer – the last one just took our money and didn't help us. What can we do to get Thabo's sentence appealed?


*Not his real name

The long answer

It’s not clear why this server crash should have continued to be such an obstacle when the Registrar of the court acknowledged receipt of the letter from Mr Padayachee, the CMA of the Qalakabusha Correctional Facility, confirming that the last letter in the case number should have been a "P" rather than a "D". 

What happened to the appeal after the server crashed? Surely the server would have been restored/repaired quite soon after it crashed and Legal Aid could have received the correct case number? Did Legal Aid ever give any reason for not proceeding with the appeal? You could ask Legal Aid again to get the court to supply the correct case number. 

An administrative action like assigning an incorrect case number to a prisoner affects the rights of that prisoner, in that he is unable to proceed with an appeal without the correct case number. That means that his constitutional rights are being infringed: Section 33 of the Constitution says that "Everyone has the right to administrative action that is lawful, reasonable and procedurally fair." 

The Promotion of Administrative Justice Act, 2000 (PAJA) ensures the right to just administrative action. 

This right can be enforced by judicial review, which means that a person who is unhappy with an administrative action can challenge the decision in court. Before someone can ask a court to review a decision, they must use up all available internal remedies. So, as the Department of Justice and Correctional Development (DOJ & CD) points out, "Internal remedies are ways of correcting, reviewing or appealing administrative decisions using the administration itself. The difference between internal remedies and the remedy of judicial review is that the judicial review is review by a court, which is independent from the administration."

Judicial review can only be used as a last resort and is dealt with in Section 7 (2) of PAJA.

Perhaps the internal remedy here is for Thabo to formally ask the CMA of Qalakabusha to assist him in getting the correct case number from the court. 

DOJ & CD again: "Every administrator must consider the following three additional procedures.

  • Providing assistance in responding to the action. In serious or complex cases, this may mean that a person must be allowed to have legal representation.

  • A person should be given an opportunity to present information and arguments in their favour and to challenge information and arguments against them.

  • A person affected may need to be given the opportunity to appear in person before the administrator."

The Department of Justice says that "One of the most important rules in the PAJA is that an application for judicial review must be made within 180 days of the date on which all internal remedies were exhausted. Where there are no internal remedies available, the application must be made within 180 days of the date on which the applicant became aware of the decision (or could reasonably be expected to have become aware of the decision). A person who asks for judicial review after this period will not be successful, unless they can convince the court to that it is 'in the interests of justice' to allow it."

In terms of administrative justice, the length of time that Thabo* spent awaiting trial (two years) is also very long; it should not be more than 18 months unless there is a very good reason for it. Section 342A of the Criminal Procedures Act deals with "Unreasonable delays in trial", saying that it should not be more than "(i) 18 months from date of arrest, where the trial is to be conducted in a High Court; (ii) 12 months from date of arrest, where the trial is to be conducted in a regional court; and (iii) six months from date". Reasons for delay have to be given. 

The head of the NPA has to submit an annual table of awaiting trial prisoners to the Minister of Justice in January and July. They use a table with columns for name and offence committed, date and how long in detention, but the first column must contain the court and case number of the prisoner. Perhaps Legal Aid can get the record from the Department of Justice for 2013/14, given that Thabo was in detention for two years before trial, i.e., six months over the limit. 

After being convicted, a person can appeal their conviction or ask for a judicial review. If Thabo were able to appeal his conviction, it would have to be on the basis that the court came to a wrong conclusion on the facts or misinterpreted the law.

He could ask for a review if it is the procedure itself that he is objecting to since the wrong case number being given to him has infringed his constitutional rights to fair treatment.

Either way, it is likely to take a considerable amount of time. I note from the judgement that he will be eligible for parole after serving 12 years of his 25-year sentence. If he was sentenced in 2013, he would be able to seek parole in 2025 – another three years. The fact is that he has already been in prison for ten years if you include the two years awaiting trial in detention. (The South African Correctional Services Act No.111 of 1998 deals with the release of offenders on parole.) 

You could also ask the lawyers of in Durban for free help and advice:

Address:  303 Smith St, Durban Central.

Tel: 031 301 6178


*Not his real name

Wishing you the best,

Answered on April 5, 2022, 12:03 p.m.

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