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[2021] ZAWCHC 159
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S v Stuurman; S v Khonze (22/2021) [2021] ZAWCHC 159; 2021 (2) SACR 559 (WCC) (18 August 2021)
R E P O R T A B L
E
THE
REPUBLIC OF SOUTH AFRICA
IN THE HIGH COURT
OF SOUTH AFRICA
(WESTERN CAPE
DIVISION, CAPE TOWN)
High
Court Review Number:
22/2021
Magistrates’
Court Case No:
OSH171/07
In the matter
between:
THE
STATE
and
LLEWELLYN
STUURMAN
Accused
and
Magistrates’
Court Case No:
GSH4/250/08
In the matter
between
THE STATE
and
XOLO
JOSEPH
KHONZE
Accused
REVIEW JUDGMENT:
18 AUGUST 2021
PANGARKER AJ
Introduction
1.
Two matters were referred on review by the Regional Court President’s
office
ostensibly in terms of section 304A of the Criminal Procedure
Act 51 of 1977
(‘the Act’).
I considered the
record of proceedings, requested feedback regarding a Constitutional
Court decision in one of the matters and
invited the Office of the
Director of Public Prosecutions, Cape Town, to provide submissions
with regard to the matters. State
Advocate Ms Schölzel has
provided written submissions which were of great assistance and she
is thanked for her contribution
in this regard.
2.
In both matters, criminal proceedings had commenced before regional
magistrates
but for the reasons set out below, were not finalized and
in addition, both judicial officers (the regional magistrates who
commenced
the proceedings) were later appointed as Judges to the
Western Cape High Court. In the correspondence referring the matters
to
the High Court, the request was that the proceedings in respect of
the accused in each matter should now proceed before the respective
Judges who presided at the time in the Regional Courts. I have used
the words “
judicial officers”
when referring to
the Judges who were the regional magistrates who commenced the
proceedings in question.
3.
The circumstances of these matters raise the following questions:
3.1
Are the proceedings which commenced before
the judicial officers, abortive and therefore a nullity?;
3.2
If so, are the proceedings to commence
de novo
before other
regional magistrates?;
3.3
Is it necessary for this Court to set the proceedings aside?;
3.4
The applicability of section 304A.
S
v Qolo Joseph Khonze
4.
The trial of the accused, Mr Khonze, on a charge of murder commenced
in the Parow
Regional Court in September 2009 and the evidence of two
State witnesses was heard, whereafter the trial was postponed for
further
hearing to a date in October 2009. On the next trial date,
the accused absconded and the judicial officer authorized a warrant
for the accused’s arrest. Eleven years later, in 2020, the
accused was eventually arrested on the warrant. The judicial officer
before whom the trial commenced was in the interim period appointed
as a Judge to the Western Cape High Court.
5.
Section 118 of the Criminal Procedure Act 51 of 1977
(the Act)
concerns the situation where the presiding officer becomes
unavailable after the accused has pleaded not guilty but before
evidence
at a trial has been adduced, while section 275(2) applies
where the presiding officer becomes unavailable after conviction but
before sentencing of an accused person. In the circumstances of Mr
Khonze’s matter as described above, neither of these two
sections would apply.
6.
The first three questions posed above would require a consideration
of the authorities
regarding the status of a matter where the
judicial officer before whom proceedings commenced, becomes
unavailable prior to its
conclusion.
In
R v Mhlanga
1959 (2) SA 220
(T) at 222, addressing the transfer of a magistrate
during a trial, the High Court found that such transfer was akin to a
cessation
of the magistrate’s jurisdiction in the Court in
which the plea was taken and thus the proceedings become abortive and
therefore
a nullity.
S
v de Koker
1978 (1) SA 659
(O),
referring
to
S
v Gwala
1969 (2) SA 227
(N)
and
Magubane
v Van der Merwe
NO
1969 (2) SA 417(N)
,
held that where there is an impossibility of continuation of the
trial due to the unavailability of the magistrate, then the
proceedings became abortive or null and it is therefore not necessary
for the High Court to set the proceedings aside before a new
trial
can commence. Thus in
de
Koker
,
the High Court made no order setting aside the proceedings because
the proceedings had lapsed.
7.
Kennedy AJP in
Gwala
distinguished between
circumstances where the magistrate is transferred to another district
and held that the magistrate must in
that situation conclude the
case, as opposed to his resignation or dismissal, which would result
in the matter commencing
de novo
against the accused before
another magistrate. In a later judgment
S v Zungu
1984
(1) SA 376
(N) at 380
, Milne JP adopted the same approach as the
earlier authorities, holding that:
“
It
appears to me that the non-availability of the trial magistrate must
be considered in the same light as if his non-availability
had been
brought about by his dismissal. This is not a case where arrangements
can be made for the trial to be heard by him as
might occur if he had
been transferred or perhaps resigned".
8.
Thus, having regard to the authorities, the Judge cannot be called
upon to hear
and finalise the matter in the Regional Court as if he
were still in the service of the Department of Justice in his
capacity as
a regional magistrate. In my view, his unavailability as
a result of his appointment as a Judge is comparable to his Regional
Court
appointment having terminated and his jurisdiction in Mr
Khonze’s matter having ended. Stated differently, the judicial
officer’s
jurisdiction in the Court in which the accused’s
plea was taken in the proceedings, came to an end.
9.
In the result, it follows
ex lege
that the proceedings before
the judicial officer which commenced in 2009 and remained partheard,
are a nullity and abortive by
virtue of his jurisdiction in the
matter having ended upon his appointment to the position of Judge.
The situation in Mr Khonze’s
matter finds a parallel in
S
v de Koker
and in the circumstances, there is no need for the
intervention of the High Court to set aside the proceedings
pre-conviction.
In the event that the State wishes to proceed with
the matter, it may commence
de novo
before a regional
magistrate.
S
v Llewellyn Stuurman
10.
In this matter, the accused was 14 years old when he appeared in the
Oudtshoorn Regional
Court in 2005 on a charge of murder of a 14-year
old girl. Subsequently, in 2009 and at the age of 18 years, he
appeared before
the judicial officer who later became a Judge of this
Division. The record reflects that the accused sustained a serious
head injury
at the age of 5 years old which had left him severely
intellectually disabled. The judicial officer referred the accused
for observation
in terms of sections 77, 78(2) and 79 of the Act and
he was assessed by three psychiatrists. An enquiry in terms of
section 77
(6)(a) of the Act commenced before the judicial officer in
2009 and the record indicates that the findings of the experts were
not unanimous, with at least one expert (Professor Kaliski) of the
opinion that the accused was fit to stand trial at the time.
11.
The accused was legally represented and, subsequently assisted by
Legal Aid South Africa,
launched a constitutional challenge in
respect of section 77(6)(a) read with section 77 of the Act. The
result was that the prosecution
against the accused was stayed
pending the outcome of the constitutional challenge and on 5
September 2014, under case number 4502/2010,
Griesel J granted
various orders,
inter alia
, that section 76(a)(1) and (2) of
the Act were declared unconstitutional. A curator
ad litem
was
appointed for the accused and his mother represented him as an
applicant in the High Court and Constitutional Court. Subsequently,
on 26 June 2015, in
De Vos NO and Others v Minister of Justice
and Constitutional Development
[2015] ZACC 21
, the
Constitutional Court did not confirm the High Court’s
declaration of invalidity but held that section 77(6)(a)(i) of
the
Act was invalid and inconsistent to the limited extent as set out in
its order (the details of the further orders are not relevant
for the
purpose of this judgment).
12.
The record reflects that subsequent to the Constitutional Court’s
judgment, the matter
was placed on the roll of the Oudtshoorn
Regional Court again and that the State and defence were
ad idem
that notwithstanding an older record which was destroyed, that
the accused had not pleaded to the murder charge. The parties made
submissions to the regional magistrate in March 2018 regarding the
issue of the non-availability of the judicial officer (the Judge)
who
heard the enquiry and the applicability of section 118. Eventually,
in April 2020 the Regional Court heard evidence of a probation
officer who compiled an updated report on Mr Stuurman’s
background and subsequent to further submissions by the parties,
the
Acting Regional Court President referred the matter to the High Court
with the request referred to at the outset of the judgment.
13.
This matter differs from
S v Khonze
in that no plea was
noted and the trial on the merits had not commenced, in light of the
section 77(6) enquiry. However, the similarity
is that evidence was
adduced in an enquiry but no ruling had been given by the judicial
officer because of the constitutional challenge
which was launched.
Ms Schölzel submits that sections 118 and 275 of the Act do not
apply to Mr Stuurman’s matter and
having regard to paragraph 5
above I am in agreement with her. In the absence of statutory
regulation, and having regard to the
fact that the judicial officer’s
jurisdiction in the matter ended by virtue of his appointment as a
Judge, the same approach
adopted in Mr Khonze’s matter should
apply to the proceedings heard by the judicial officer in Mr
Stuurman’s matter:
the proceedings are to be regarded as a
nullity and abortive, and therefore the section 77(6) enquiry should
start
de novo
before a regional magistrate. Mr Stuurman is
currently 30 years old and it bears mentioning that more than 10
years have elapsed
since the enquiry in terms of section 77(6) and
the determination as to whether he is fit to stand trial must be made
at the time
of the trial.
14.
The authorities I refer to in Mr Khonze’s matter apply equally
to the position in
Mr Stuurman’s matter. For the reasons set
out above, the nullity of the proceedings before the judicial officer
who was appointed
as a Judge arises
ex lege
and there is no
need for the High Court’s intervention to set aside those
proceedings.
The
applicability of section 304A
15.
There is a final aspect which I consider requires comment and that is
the applicability
of section 304A to the facts and circumstances of
both matters. Section 304A states that:
304A
Review of proceedings before sentence
(a)
If a magistrate or regional magistrate after conviction but before
sentence is of the opinion
that the proceedings in respect of which
he brought in a conviction are not in accordance with justice, or
that doubt exists whether
the proceedings are in accordance with
justice, he shall, without sentencing the accused, record the reasons
for his opinion and
transmit them, together with the record of the
proceedings, to the registrar of the provincial division having
jurisdiction, and
such registrar shall, as soon as is practicable,
lay the same for review in chambers before a judge, who shall have
the same powers
in respect of such proceedings as if the record
thereof had been laid before him in terms of section 303.
16.
In both matters, the accused persons were not convicted, and in my
respectful view, the
type of review contemplated in section 304A (a)
does not find application. I am fortified in this view by the
judgment of
S v Engelbrecht and Others
[2005] ZAWCHC 11
;
2005 (2) SACR
383
(C)
where Fourie J (Hlophe JP and Dlodlo J concurring) held
at paragraph 3 that
:
“
Absent
a conviction, as in the present case, the matter is not reviewable in
terms of section 304A of Act 51 of 1977. It is also
not reviewable in
terms of s 302(1) or s 304(4) of Act 51 of 1977, as the accused have
not been convicted and sentenced.”
17.
Furthermore, none of the four limited grounds for review of the
proceedings of a Magistrates’
Court as contained in
section 22
(1) of the
Superior Courts Act 10 of 2013
read with Uniform
Rule 53
apply in these two matters. While the High Court has inherent power
to review proceedings of the lower Courts in terms of section
173 of
the Constitution of the Republic of South Africa, 1996, read with
section 35(3) such authority should be used in rare instances
where
grave injustice may result or where justice may not be obtained by
any other means
(
Wahlhaus and Others v Additional
Magistrate, Johannesburg and Another
1959 (3) SA 113
(A)
at 120E-H)
. The two matters are in the Regional Courts and I am
of the view that there is no reason to hold that a grave injustice
would ensue
if they proceed to be finalized in those Courts. There is
accordingly no reason for this Court’s intervention in the
un-concluded
proceedings of Mr Khonze and Mr Stuurman. However, given
the lapse of time, the need for finality in proceedings and the
interests
of justice, Mr Stuurman and Mr Khonze’s matters
should receive urgent attention in the Regional Court.
Conclusion
18.
In the circumstances, no orders are granted setting aside the
proceedings in
S v XJ Khonze
and
S v L Stuurman
and these matters are referred back to the relevant Regional Courts.
A copy of this judgment will be sent to the Regional Court
President,
Western Cape and the Director of Public Prosecutions, Western Cape,
for their attention.
M
PANGARKER
Acting
Judge of the High Court
I
agree and it is so ordered.
L
BOZALEK
Judge
of the High Court