Appeal delayed for seven years

Judge condemns State’s legal deficiency

THE case of a Durban attorney whose appeal took seven years to be heard will be referred to the Registrar of the Criminal Appeals Court as well as the Director of Public Prosecutions for investigation.

Pietermaritzburg High Court Judge Kevin Swain, who condemned the State for the “inordinate delay”, made the order in a reserved judgment handed down yesterday.

The investigation must include remedial steps to prevent a recurrence of such a delay in the setting down of appeals.

The judge also ordered that he be given a report detailing the Registrar’s and the DPP’s findings within 30 days of his judgment.

“The evidence reveals a damning indictment of the administration of the criminal justice system. An inordinate delay of seven years in setting down an appeal is inexcusable, which is aggravated by the failure of the State to… explain the delay,” Judge Swain said.

The judge’s remarks come on the back of an appeal against sentence by former Durban attorney Sumenthen Pillay, who pleaded guilty to the theft of R207 546 in trust monies from trust creditors in his practice as an attorney.

Pillay was sentenced to six years’ imprisonment, half of which was suspended for three years on condition that he was not charged with theft or attempted theft during the period of suspension.

Pillay then appealed against his sentence on the basis that it was inappropriate.

However, his attorney later argued that, based on the inordinate delay in the finalisation of the appeal, exceptional or peculiar circumstances existed which justified the court revisiting the sentence imposed.

In his judgment, Judge Swain said that the crime of theft by an attorney of trust money was an extremely serious offence, and that the sentence of six years, half suspended, was appropriate.

“However, in the light of the evidence by Pillay, which is not disputed by the State, there is no purpose in imposing a custodial sentence upon him seven years after his conviction,” Judge Swain said, adding that a seven-year delay in setting down an appeal amounted to an exceptional circumstance.

Condition

The judge ordered that Pillay’s six-year sentence be wholly suspended for three years, on condition that he pay back the stolen money to the Attorney’s Fidelity Fund.

In papers before the court, Pillay indicated that to date he had already paid back R70 000.

He was given three years to pay back the outstanding full amount.

In his affidavit, Pillay explained he had been trying to establish the status of his appeal since March 2007, and the reason for the delay in setting it down. He was told that the file could not be located.

During October 2007, Pillay said he applied for re-admission as an attorney, but after meeting with the KZN Law Society, he was told that his readmission could not be considered until his criminal appeal had been disposed of.

Thus, the setting down of his appeal became more urgent, Pillay said.

In 2009, he again instructed his attorney to follow up the appeal with the Criminal Appeals Clerk at the Durban Magistrate’s Court.

Pillay’s attorney made enquiries about the appeal on four separate occasions between December 2009 and May 2010, but his efforts were futile and he was told that the file could still not be found.