We would also have been successful, says Legal Aid SA

Date: 18 October 2018   Read: 1918

The communications department of Legal Aid South Africa sent through a press release in response to a report carried last week, entitled: “Twelve years in jail for something he didn’t do”

Recent media reports on the murder conviction appeal for Mr Samuel Nndwambi have alleged that Legal Aid South Africa (abbreviated as Legal Aid SA) delayed his appeal process by 10 years. This is incorrect. Legal Aid SA was not afforded an opportunity to present its side of the story.

Samuel Nndwambi was accused number 4 in a trial for murder and robbery with aggravating circumstances. Legal Aid SA represented all four accused at the trial, with accused 1 being represented by an internal legal practitioner and the remaining 3 accused being represented by separate Judicare attorneys who were instructed by Legal Aid SA.

“The trial was finalised on 22 August 2006 and the accused were sentenced by then Acting Judge Ephraim Makgoba to life imprisonment for murder and 10 years for robbery with aggravating circumstances. The sentences were to run concurrently. We are not sure why leave to appeal was not applied for at that stage, as we would have approved continuation of legal aid to make an application for leave to appeal in accordance with our policy,” says Legal Aid SA Limpopo/Mpumalanga Provincial Executive, Ms Mpho Kgabi.

She further states that on 13 March 2007, Mr Nndwambi instructed in a private brief the same firm of attorneys that represented him in his trial to apply for leave to appeal against the conviction and sentence. “Again, this is something that Legal Aid SA would have paid for as per our policy. It is therefore evident that the attorney who Mr Nndwambi instructed did not advise Mr Nndwambi correctly with regard to the fact that legal aid could have been obtained for the leave to appeal application. The leave to appeal application was unsuccessful.”

In October 2013, Mr Nndwambi applied for legal aid through the Legal Aid SA Thohoyandou Local Office. The High Court Unit Paralegal from this office went to consult with him on 3 October 2013, where he requested Legal Aid SA to assist him with lodging a petition to the Supreme Court of Appeal (SCA). A file was opened for Mr Nndwambi and the matter was allocated to Legal Aid SA High Court Unit legal practitioner, Mr Lucky Thomu. He consulted the client on 23 October 2013, where he took full instructions and also completed the Power of Attorney. Therefore, Legal Aid SA only became involved again in this matter in October 2013; just over 7 years after his trial.

“Mr Thomu applied for the transcribed records on 29 October 2013 in order to prepare the petition application. Despite repeated follow-ups with the Department of Justice and Constitutional Development (DoJ&CD) for these records, he only received the complete set of records from the Registrar in early June 2016. It is widely known that there was a backlog in the processing of court records at the DoJ&CD during this period and this would be the main reason for the delay in receiving the complete court records in this matter. Mr Nndwambi did inform Mr Thomu during this period that he had an incomplete set of transcribed records, which he handed to him in February 2016. However, these were insufficient to draft the petition application. Immediately upon receiving the complete set of transcribed records, Mr Thomu drafted the petition application, which was filed at the SCA on 22 June 2016. The transcribed records were provided to Legal Aid SA by the registrar, free of any charge,” clarifies Ms Kgabi.

It is important to note that Mr Nndwambi indicated in his founding affidavit for the petition to the SCA that, up until 2011, he was not aware that he could take the matter further through petition. He learnt about this during 2011 from other inmates but only approached Legal Aid SA during 2013.

Subsequent to the drafting and lodging of the petition on 22 June 2016, our instruction was terminated by Mr Nndwambi on 22 July 2016, who then appointed a private attorney who had been successful in securing the release of another co-accused in the matter in May 2016. The petition that was filed by our practitioner was successful, and Mr Nndwambi was granted leave to appeal in January 2017. However, the appeal was not timeously prosecuted and it lapsed.  Condonation was subsequently granted by the SCA and Mr Nndwambi’s appeal was set down for August 2018. Based on the papers that were filed, as well as the concessions provided by the State, as well as its referral to another recent judgment which had a direct impact on this matter, the SCA bench of judges upheld the appeal in June 2018 without having to have a formal appeal hearing. 

Ms Kgabi does note that “it is however strange that the private attorney had to pay approximately R37 000 for the record as this was already transcribed and all that was required of them was to pay for a copy of the record. Alternatively, they could have approached Legal Aid SA for the copy, noting that we would have had same because we filed the petition.”

Having had regard for the events that transpired, it is clear that Legal Aid SA only received instructions for the petition application in October 2013 and our mandate was terminated in July 2016, after the petition was lodged. Therefore, notwithstanding that Mr Nndwambi was incarcerated for a period of 12 years since the trial, Legal Aid SA was only on record for 2 years and 8 months during this period. It is therefore factually incorrect for Mr Nndwambi to indicate in media reports that Legal Aid SA represented him for 10 years and nothing happened. Besides indicating an incorrect time period of representation, Mr Nndwambi also fails to acknowledge that the petition application that we lodged was successful, which then made the subsequent appeal proceedings possible.

Legal Aid SA has a proud history of successful litigation at the SCA. During the 2017/18 financial year, Legal Aid SA had 30 appeal matters at the SCA with the majority (16) having successful outcomes. The Legal Aid SA Thohoyandou Local Office has also distinguished itself with a high success rate of matters that have gone on appeal to the SCA in the past.

“Legal Aid SA has no doubt that, had we remained on this matter, we would have had a similar successful outcome for Mr Nndwambi. We employ qualified legal practitioners who provide quality legal services to clients, always championing the rights of all persons to access justice,” concludes Ms Kgabi.  

Visit our website at www.legal-aid.co.za or call the Legal Aid Advice Line on 0800 110 110.

 

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