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[2018] ZAWCHC 182
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Prince v Groenewald NO and Another (4561/18) [2018] ZAWCHC 182 (12 December 2018)
IN
THE HIGH COURT OF SOUTH AFRICA
(WESTERN
CAPE DIVISION, CAPE TOWN)
Case
Number: 4561/18
In
the matter between:
Gareth
Prince Applicant
And
Mr
J Groenewald
NO First
Respondent
The
Director of Public Prosecutions (Western
Cape) Second
Respondent
JUDGMENT
DELIVERED 12 DECEMBER 2018
BAARTMAN,J
[1]
This is an application, in terms of Rule 53 of the Uniform Rules of
Court: the applicant seeks the following:
(a) ‘Reviewing and setting aside
the proceedings and orders made by [the magistrate at Moorreesburg]
(
the first respondent
) under case number 324/17.
(b) Staying the proceedings in
Moorreesburg case 324/17 pending the determination of the
Constitutional challenge in the Prince
decision.’
[2]
The first respondent, who has since left the bench, abides by this
court’s decision. The Director of Public Prosecutions,
Western
Cape (
second respondent
), has opposed the application. The
applicant alleges that the proceedings sought to be reviewed and set
aside were tainted
by bias and gross irregularities. He amplified as
follows: ‘
the [respondents’] failure to observe their
constitutional duties and to stay impartial during proceedings was a
vitiation
of justice and destroyed the fairness of the proceedings’.
I deal with these and other grounds below. Conversely, the
second respondent has alleged, among others, that the application
is
premature and bad in law. I deal with the grounds of opposition
below.
Background
[3]
On 27 July 2017, the police stopped the applicant in a routine road
block at Moorreesburg. At the time, the applicant’s
wife,
children, mother and grandmother were occupants in the vehicle. A
police dog, trained in the detection of dagga, detected
a substance
concealed in the motor vehicle. The substance was contained in 613
capsules and 5x1 ml syringes. The police arrested
the applicant on
charges of dealing, alternatively possession of dagga in
contravention of the Drugs and Drug Trafficking Act,
140 of 1992 (the
Act). He was released on bail. The charge sheet lodged with the
clerk of the court is not before us.
[4]
On 27 September 2017, the applicant made his first court appearance;
the matter was postponed to 26 October. I deal with the
postponements
leading to these proceedings in some detail below. The matter was
postponed to 27 November on which date the forensic
report was
available from which it was apparent that the substance at issue was
dronabinol, not dagga as suspected.
[5]
Therefore, the second respondent amended/substituted the charge sheet
(
the new charge sheet
). He proffered charges of – count
1 –contravening section 5(b) of the Act read with section
13(f), and Part ll
of Schedule 2 in that ‘[applicant]
wrongfully dealt in dangerous dependence producing substance, to wit,
613 capsules and
5 syringes containing dronabinol’;
alternatively possession of the substance in contravention of section
4(b) of the Act.
In addition – count 2 – contravening
‘section 22(1) of Act 101 of 1965 read sections 1, 9, 30, 31
and Schedule
6 of the Medicines and Related Substances Control Act,
Act 101 of 1965’ (
the Medicines Act
).
[6]
It is not apparent from the record when the applicant received the
new charge sheet. However, he indicated from the bar that
he received
it shortly before the 27 November proceedings. Mr Stevens SC,
who appeared for the state, did
n
ot take issue with the
applicant on that aspect. There is no indication that the new charge
sheet was lodged with the clerk of the
court. Pending the
outcome of these proceedings, the criminal proceedings were
provisionally withdrawn. I deem it necessary
to deal in detail with
the various postponements in court that gave rise to this
application.
The
first appearance: 27 September 2017
[7]
On 27 September 2017, the applicant made his first appearance in
court and elected to conduct his own defence. The prosecutor
addressed the court and indicated that the applicant was involved in
a 'Constitutional [Court] matter’ to legalise the possession
of
dagga. ‘The docket was sent to the DPP, and the decision was to
proceed with the case.’
[8]
The prosecutor further requested that the matter be postponed until
26 October as the applicant had ‘approached him
this
morning and that they decided to remand the case until 26/10’.
However, the applicant requested that the matter instead
be remanded
to a date in March 2018. He motivated that request as follows:
‘Section 5(b) Act 140/1992 was declared unconstitutional
and
[there] will be a judgment in March 2018.’
[9]
The first respondent remarked that he was ‘of the opinion that
it is only the possession of dagga that was declared
unconstitutional’.
He postponed the matter to 26 October 2017.
The
second appearance: 26 October 2017
[10]
On 26 October, the prosecutor told the court that the ‘
DPP
[has] decided that the [applicant] should be prosecuted, and the
letter is attached as Exh. A.
’ He requested that the matter
be postponed to 27 November 2017 to allow for: ‘
further
statements [to be] taken from the Lab and …for further
investigation and will hopefully then be able to provide further
particulars.’
The
court granted the request.
The
third appearance: 27 November 2017
[11]
On 27 November 2017, the prosecutor informed the court that he had
provided further particulars to the applicant which indicate
that it
‘
is not the usual type of substance and he needs further
assistance in that regard.
’ Nevertheless, the prosecutor
indicated that he was ready to put the charges to the applicant. [It
is not apparent from the
record when the particulars were provided.]
[12]
The applicant told the court that he ‘
had some queries and
did not know if it must be a point in limine.
’ He further
indicated that he was ‘
not sure what the state wants to do –
the charge sheet is not the same as was given to him earlier
.’
He further indicated that he would object to the charge sheet should
charges be put to him that day.
[13]
In response, the prosecutor replied that ‘
it was the
decision of the DPP to charge the [applicant] with this offence’
.
He further informed the court that he had already changed the charge
sheet.
[14]
The applicant responded by requesting a postponement to January 2018
to approach the High Court ‘
for a staying of proceedings’.
The matter was postponed to 29 January 2018 for plea.
The
fourth appearance: 29 January 2018
[15]
On 29 January 2018, the proceedings were mechanically recorded. The
prosecutor started as follows:
‘
As far as the amendment of the
charge sheet is concerned, the state is under the impression that at
least before plea the state
is dominus litus and that I can change or
add the charges against an accused. …I must admit that in 25
years as a prosecutor,
I believe this is the first time that an
accused objected to any charge that I put in court to him…
I believe there is no ground for any
objection if I study section 85 and further it is provided that the
accused shall give reasonable
notice to the prosecution of his
intention to object to the charge and shall state the grounds upon
which he bases his objection,
provided further that the requirement
of such notice may be [waived] and the court may, on good cause
shown, dispense with such
notice, or adjourn the trial to enable such
notice to be given.
I can only confirm that [to] my
surprise this morning with regard to [the applicant] objection to the
charges put to him. The state
never received any notice of his
intention to object to the charges. [the applicant] indicated to the
court that he did not apply
for a stay of the prosecution because of
a defect in the state’s case or the state’s charges, but
I believe the reason
why he did not apply for the stay of prosecution
is because this particular charge would not fall under the same or in
the same
scope of other charges for which [the applicant] already
applied for a stay of prosecution….
…
I am not sure precisely what,
but he indicated that drunobinol is not listed in schedule 3, I
believe that would have been applicable
if the state would have
proceeded in terms of the possession of dagga…’
[16]
The applicant responded as follows:
‘…
my objection to what he
is doing is because what the prosecutor attempts to do is to
substitute a charge and he is not allowed to
do it.
…
The prejudice in this
particular case… is acute. If the prosecution were to continue
with charging me with dealing in dagga
he would have to acquit me,
because the law clearly say dronabinol is not illegal in terms of
part 3 of schedule 2 of the act.
…The fact that dronabinol is
exempted in terms of part 3…and considered a dangerous
depending-producing substance,
in terms of another schedule of the
act, casts doubt and I am entitled to the benefit of that doubt. The
state is not entitled
to correct that after they have put the charge
to the accused. …What the state seeks to do is illegal…’
[17]
The first respondent made common cause with the prosecutor as
follows:
‘…
you said in 25 years
you have never had an objection against a charge and in 40 years I
never had one....’
[18]
The first respondent then indicated that he would have to consider
the authorities to which the applicant had referred and
requested the
full citation of the authorities. He concluded:
‘
So therefore, I am not, at this
stage, going to give a judgment on this application for the objection
against the charge.’
[19]
The prosecutor resisted and alleged that the applicant had not given
notice of his intention to object to the charges as envisaged
in
section 85
of the
Criminal Procedure Act 51 of 1977
(
the CPA
).
It was all downhill thereafter. The applicant insisted that he had
given adequate notice. The prosecutor insisted on an opportunity
to
consider the authorities the applicant had referred to and to address
the court. He emphasised that ‘
there was no time this
morning to prepare for this application.’
(my
emphasis)
[20]
Surprisingly, the first respondent agreed and ordered as follows:
‘
I am fully [in agreement] with
the prosecutor at this stage. There was no notice. (interjections
from the applicant) I am going
to order now, [applicant] and if you
want to hear it or not, it is an order of this court now and if you
don’t want this
court to order, then you can go to the high
court. This court orders you to give that such notice for the
prosecutor in terms of
section 85
that you are going to object to the
charge sheet. That is an order of this court.’
[21]
All bets were off, the applicant expressed his disgust as follows:
‘
But the notice has already been
given. The act doesn’t state that the notice has to be
written…you cannot override
the law. It would seem that the
court is extremely prejudice towards the state. (despite the first
respondent protesting the applicant
continued) You seem to be bending
over in favour of the state…I must say that’s how it
looks, especially from my side.’
The
fifth postponement: 26 February 2018
[22]
Amid much confusion and protestation, the matter was postponed to 26
February 2018 for the ordered notice to be given.
On that date,
the second respondent confirmed that the applicant had given notice
and that he had replied. The first respondent
had received both; the
applicant addressed the court while the second respondent opted not
to. The first respondent found against
the applicant ‘your
objection against the charge sheet is denied’.
[23]
The applicant indicated his intention to bring this application. The
first respondent postponed the criminal proceedings to
26 March 2018.
However, he indulged the applicant as follows: ‘
You can
arrange with the prosecutor to be excused from appearing on 26 March
then, until there is clarification about this application
of yours
.’
Discussion
[24]
It is against that background that the applicant felt ‘obliged
to approach the high court’. The applicant launched
this
application on 14 March 2018. It is apparent, from the lengthy
extract above, that on 27 November 2017 the applicant first
gave
notice of his intention to object. He stated clearly that the
substance allegedly possessed had changed. Therefore, initially
he
obtained a postponement to apply for the stay of proceedings. He did
not bring that application. Similarly, the applicant knew
on 26
October that the state would provide particulars once the forensic
report was available. That does not mean that he knew
that the charge
might be amended/substituted. He appeared in person.
[25]
On 29 January 2018, the prosecutor asserted his right as
dominus
litis
to change the charge sheet. He said ‘
my surprise
this morning with regard to [the applicant’s] objection to the
charges put to him.’
The first respondent heard both
parties before concluding: ‘
I am not, at this stage, going
to give a judgment on this application for the objection against the
charge
.’
[26]
The prosecutor, after the fact, sought to rely on technicalities and
insufficient preparation time to deal with the application.
It is
correct that
section 85
of the CPA provides for notice as follows:
‘
85 Objection to charge
…
(1) An accused may, before
pleading to the charge under
section 106
, object to the charge on the
ground –…
Provided that the accused shall give
reasonable notice to the prosecution of his intention to object to
the charge and shall state
the ground upon which he bases his
objection: Provided further that the requirement of such notice may
be waived by the attorney-general
or the prosecutor, as the case may
be, and the court may, on good cause shown, dispense with such notice
or adjourn the trial to
enable such notice to be given.’
[27]
Presiding officers should be circumspect not to create an impression
that they have prejudged a matter or that they are siding
with either
party. In this court, the applicant has repeatedly referred to the
manner in which he was addressed. It was clear,
early on, that the
respondents possibly felt intimidated by the applicant. Therefore,
they indicated that in their careers, 25
and 40 years respectively,
they had not encountered a similar objection. Moorreesburg is a rural
town in the Western Cape. The
applicant is well versed in the
legislation and authorities applicable in this matter – and
flaunts it. I accept that
he was a first for the respondents.
[28]
However, that cannot justify the first respondent’s turnabout
from reserving judgment to ordering that notice be given.
It
unfortunately left the applicant convinced that the first respondent
was biased against him. Nevertheless, he rose to the occasion,
gave
the notice and took advantage of a further opportunity to address the
court. It is apparent from the record that the respondents
had no
idea how to handle ‘the novel’ objection.
[29]
The applicant initially
asserted that the charges, relating to dagga, should be stayed
pending the outcome of the Constitutional
court’s judgment
[1]
.
The respondents disagreed that the proceedings should be stayed. In
appropriate circumstances, it may be necessary for the presiding
officer to express a view that favours either party. Nevertheless,
one must ensure, irrespective whether the accused/party is legally
represented, not to create the impression of siding with one party.
Nothing more need be said about this relief; judgment was delivered
on 18 September 2018. The point is moot.
[30]
The applicant insisted, in
argument in this court, that the state should have charged him with
all the relevant prohibited substances
as the exact substance would
only be determined after analysis. However, so the submission went,
the state elected to only rely
on charges relating to dagga and must
proceed on that basis. The invitation for the state to throw the book
at him was fortunately
not accepted. When the initial charge sheet
was formulated, the only objective evidence available, the sniffer
dog trained in detecting
dagga justified only charges relating to
dagga. The state is obliged, when instituting any prosecution, to act
with reasonable
and probable cause
[2]
.
Charging the applicant with all the relevant prohibited substances,
in the circumstances of this matter, would have fallen foul
of that
obligation. So too, would continuing with charges related to dagga
despite a forensic report indicating another substance.
[31]
Kriegler J
[3]
said the following about ‘the charge’:
‘
[18] …The word ‘charge’
is ordinarily used in South African criminal procedure as a generic
noun to signify the
formulated allegation against an accused. That is
how it is defined in
s1
of the
Criminal Procedure Act 1977
and how it
is used throughout that statute. Used as a verb it bears no defined
or precise meaning in the Act nor in criminal procedure
terminology.
It therefore comes as no surprise that the precise meaning of the
word ‘charged’ as used in s25(3)(a)
of the interim
Constitution has elicited judicial debate. Corresponding provisions
in other human rights instruments have likewise
required analysis.
Those cases illustrate that ‘charged’ can be interpreted
very narrowly, so as to refer to formal
arraignment or something
tantamount thereto, or broadly and imprecisely to signify no more
than some or other intimation to the
accused of the crime(s) alleged
to have been committed….
In the context of s25(3)(a) and the
preservation of the individual’s protection against unfair
criminal proceedings it can
safely be accepted that ‘having
been charged’ includes appearing in the dock for the formal
remand of a criminal case.’[Notes
omitted]
[32]
Scott JA
[4]
,
with reference to the meaning of ‘charged’ in s 2(4) of
the Prevention of Organised Crime Act 121 of 1998 (
POCA
),
said (where the state added charges of racketeering before authorised
to do so):
‘
[12]…where the word
‘charged’ in s2(4), to borrow from the language of
Kriegler J in Sanderson, ‘falls
along the continuum of possible
meanings of the word’. In my view …once the prosecution
is authorised in writing by
the National Director there can be no
reason, provided the accused has not pleaded, why the further
prosecution of the accused
on racketeering charges would not be
lawful, even if the earlier proceedings were to be regarded as
‘tainted’ and would
be invalid. …
Indeed, until an accused has pleaded
the state would be at liberty to withdraw the charge and recharge the
accused once the authorisation
had been granted. But such an exercise
would serve no purpose and I can see no reason why it should be
necessary.’
[33]
On any interpretation, the
applicant was charged with offences relating to dagga when he made
his first appearance in court. It
is common cause that the applicant
did not plead to the charges proffered against him. He had been in
possession of the new charge
sheet for some time and was entitled to
have access to the content of the police docket
[5]
.
In the circumstances of this matter, withdrawing the charge only to
reinstitute it would deny the applicant his right to a speedy
trial.
[34]
This case exposes the danger of informally and casually conducting
proceedings. Inevitably, there are loose ends and no way
to tie them
up. Therefore, the prosecutor resorted to technicalities. He should
have requested the postponement to prepare argument
before he argued.
In the circumstances of this matter, it was form over substance, in
the extreme, to have required formal notice
of the objection. The
applicant’s indignation was justified. The first respondent
regained composure, gave a reasoned ruling
and leaned in favour of
the applicant with the concession that he be excused from court,
making arrangements with the prosecutor
until he had clarity about
the process of this application.
[35]
Can one infer bias in these
circumstances? The test is objective
[6]
:
‘
[45] …it appears that
the test for apprehended bias is objective and that the onus of
establishing it rests upon the applicant.
The test for bias
established by the Supreme Court of Appeal is substantially the same
as the test adopted in Canada. …
…
the apprehension of bias must
be a reasonable one, held by reasonable and right-minded persons,
applying themselves to the question
and obtaining thereon the
required information…[The] test is ‘what would an
informed person, viewing the matter realistically
and practically –
and having thought the matter through – conclude”’(footnotes
omitted)
[36]
I am persuaded that the circumstances of this matter do not establish
bias. Instead, they expose the undesirability of veering
between
formal and informal conduct. The presiding officer must give
direction of the process to be followed in proceeding.
Conclusion
[37]
This court has in its
supervisory role over proceedings in the lower court ‘among
many ample powers’ the power to ‘remit
the case to the
magistrate’s court with instructions to deal with any matter in
such manner as it may think fit
[7]
’.
Against the above background, I have considered that the proceedings
in the magistrate’s court are incomplete. It
is settled law
that as ‘a general principle Courts are reluctant to interfere
in interlocutory proceedings of lower courts
prior to the conclusion
of criminal proceedings
[8]
.’
[38]
The proper approach to apply is still as set out by Hlophe ADJP (as
he then was) and Griesel J in
S v Attorney-General, Western Cape
;
S v Regional Magistrate, Wynberg, and Another
1999 (2) SACR 13
(C) at 22(E)–(F):
‘…
the proper approach …is
to consider whether the applicant has made out a case for departing
from the general rule that it
is undesirable in criminal proceedings
to entertain appeals and/or reviews before the trial has been
concluded. To put the same
test in different terms: is this [one of]
those rare cases where grave injustice might otherwise result if we
do not interfere
before criminal proceedings have been finalised or
where justice might not by other means be attained?’
[39]
I have also considered that the magistrate has left the bench. This
matter will proceed before another presiding officer. The
applicant
has not pleaded to the charges proffered against him. He will have an
opportunity to obtain further particulars before
pleading to the
charge. The applicant will have an opportunity to take the first
respondent’s decision on appeal/review once
the criminal
proceedings are finalised. I make no finding in respect of the merits
of the ruling. The applicant in his heads of
argument submitted that
‘these proceedings be set aside but that the [second]
respondent reserve the right to reinstitute.’
[40]
As indicated above, that route would only delay an already delayed
trial. I am persuaded that this is not one of ‘
those rare
cases
’ militating for a deviation from the general rule.
I, for the reasons stated above make the following order with
which
Thulare AJ concurred.
(a) The application is dismissed.
(b) The matter is remitted to the
magistrate’s court for the proceeding to proceed before another
magistrate.
____________________________
BAARTMAN
J
I
concur.
_____________________________
THULARE
AJ
[1]
Minister of Justice and
Constitutional Development and Others v Prince
;
National Director of Public
Prosecutions and Others v Rubin
;
National Director of Public
Prosecutions and Others v Acton and Others
[2018] ZACC 30.
[2]
Nel v Baloyi 2005 JDR 0804 (T) at para 20;
Relyant
Trading (Pty) Ltd v Shongwe
[2007] 1 All SA 375
(SCA) at para 5.
[3]
Sanderson v Attorney -General, Eastern Cape
[1997] ZACC 18
;
1998 (1) SACR 227
(CC)
at para 18-19.
[4]
National Director of Public Prosecutions v Moodley (263/08)
[2008]
ZASCA 137
(26 November 2008)
[5]
Shabalala and Others v
Attorney-General, Transvaal, and
Another
1996 (1) SA 725 (CC).
[6]
President of the Republic
of South Africa and Others v South African Rugby Football Union
and Others
[1999] ZACC 9
;
1999 (4) SA 147
(CC) at para 45.
[7]
Magistrate, Stutterheim v
Mashiya
2004 (5) SA 209
(SCA) at para 13 and
S v
Steyn
2001 (1) SA 1146
(CC) at para 20.
[8]
Levack and Others v
Regional Magistrate, Wynberg, and Another
1999 (4) SA 747
(C) at 754 A-D and the SCA appeal (same parties)
2004 (5) SA 573
(SCA) at para 27.