- S v Gabani 2021 (1) SACR 562 (ECB)
This Gabani case took place between the Mdantsane Magistrates’ Court and the High Court in Bhisho in the Eastern Cape.
On 3 August 2011, Mr Mthethelele Gabani, the accused, and three other accused persons, were arraigned on a charge of gang rape before the Mdantsane regional court. In due course the accused was convicted and on 11 November 2011 the accused was sentenced to 28 years’ incarceration. This was his first brush with the law.
Leave to appeal to the High Court in Bhisho against both his conviction and sentence, was refused.
The next we hear is that on 31 March 2017 the Mdantsane Magistrates’ Court noted receipt of the accused’s petition to the Judge President of the High Court in Bhisho (“the High Court”) for leave to appeal. On 4 June 2018, the petition was served before the High Court, which however, required certain documents from the Mdantsane Magistrates' Court. What happened further, can best be described by excerpts from the unanimous judgment of the High Court which, by the way, consisted of a full bench of three judges.
In paragraphs  and  of the judgment, the following is stated:
“ These motion papers were accompanied by a confirmatory affidavit from the errant clerk. Copies of the papers were also forwarded to the registrar of the Bhisho High Court and to the deputy Director of Public Prosecutions (“the DPP”). At some stage thereafter two bundles of transcribed documents, a seven-page wadd of illegible manuscript notes, a form J88 and an affidavit were dumped in the High Court file. I am unable to say when this happened as no acknowledgment of receipt is reflected.
 Some time thereafter, and in pursuance of a general witch hunt regarding files which had been collecting dust over unacceptably long periods in the general office of the Bhisho High Court, I stumbled upon the appellant’s [accused] petition file. This was in March 2019, after having been advised that the appellant had been phoning the general office every second day from prison (sic) to find out what had happened to his petition. It transpired that nothing had been done to escalate the appellant’s petition for five months, notwithstanding these repetitive calls from the appellant and his family members. In particular, there was no indication that Judge Hartle’s directive had ever been transmitted by the clerk responsible.”
And in a footnote that appears directly after paragraph , the following is stated:
“During the course of investigations it soon became apparent that many of the incumbents of clerical positions in the administrative staff component of the High Court were either under-qualified and poorly trained, or were simply incompetent and disinterested in taking their duties as the executive arm of the High Court seriously. I engaged in an intensive and time-consuming training programme which involved a great deal of repetition (as many of the incumbents of the posts were simply out of their depth), transparency, regular reporting and supervision.”