About SAFLII
Databases
Search
Terms of Use
RSS Feeds
South Africa: South Gauteng High Court, Johannesburg
SAFLII
>>
Databases
>>
South Africa: South Gauteng High Court, Johannesburg
>>
2012
>>
[2012] ZAGPJHC 25
|
|
Director of Public Prosecutions v Mashimbye and Another (2254/2012) [2012] ZAGPJHC 25 (28 February 2012)
NOT REPORTABLE
IN SOUTH GAUTENG HIGH COURT OF SOUTH AFRICA
JOHANNESBURG
CASE NO: 2254/2012
DATE: 28/02/2012
In the matter between
DIRECTOR OF PUBLIC PROSECUTIONS
...........................
APPLICANT
and
REGIONAL MAGISTRATE, MR MASHIMBYE
.............
1
st
RESPONDENT
MARK NICHOLAS MAITLAND
…................................
2
nd
RESPONDENT
J U D G M E N T
C. J. CLAASSEN
J:
This
matter has a
chequered history convoluted by a number of rather strange action by
the stakeholders. The matter originated as
a criminal trial in the
Regional Court of Germiston. At the beginning of the trial the
magistrate presiding ruled that a trial-within-a-trial
should be
held to determine the admissibility into evidence of two search
warrants that were issued by a magistrate in Germiston.
These
warrants had been executed and certain items were attached by the
police found in possession of the accused.
At the end of the
trial-within-a-trial, the magistrate ruled that these search
warrants were issued improperly and that the evidence
derived
therefrom was ruled inadmissible.
The trial was postponed on a number of occasions thereafter.
Eventually the State filed a review application in this court in
terms of Rule 53 of the Uniform Rules of Court to set aside the
interlocutory ruling by the magistrate declaring the evidence
inadmissible. Such review application is set down for 8 May 2012.
The criminal matter had again been postponed to 11 January 2012. On
that day the State applied for a further postponement, basically
to
enable the review application in this court to be dealt with before
the criminal trial was to be proceeded with. After hearing
argument
on the postponement application, the magistrate refused the
postponement and determined that the matter was to proceed
on 1, 2
and 30 March 2012.
The State then launched yet a further review application to this
court on an urgent basis to review the magistrate’s refusal
to
grant the postponement applied for by the State. This matter was
incorrectly brought by way of an urgent application. The
urgent
court forms part of the motion court procedures. It came before my
colleague, Carelse J, who then opined that matters
of this nature
should actually be placed before two judges in terms of the practice
rule number 8.5.
A
n officer from the
Director of Public Prosecutions attempted to obtain two judges to
hear the matter, without success. He then
approached the Depute
Judge President who then ruled that this matter was to be determined
before me, sitting as a single judge
to hear the review of the
magistrate’s refusal to grant the postponement in the court
a
quo.
There are a number of unfortunate aspects to this case. First of
all, the various delays in completing the criminal trial is
to be
deprecated. Secondly, I venture to say that it does seem as if the
State was remiss in not diligently setting down and
completing the
application for reviewing the interlocutory decision of the
magistrate at an earlier date. In fact, there was
a promise that it
would be heard during the fourth quarter of last year. If it had
been heard then, the matter of the correctness,
or otherwise, of the
decision in regard to the admissibility of the search warrants,
would have been completed by the time the
matter was to continue on
11 January 2012. This did not happen and the review application was
only set down to be heard for 8
May 2012. In my view the State could
have acted more diligently and speedily in this regard.
The question that I have to decide is two-fold. Do I have
jurisdiction to hear this review application regarding the refusal
of the postponement in the court
a quo,
and secondly, if I do
have such jurisdiction, whether I should grant the application or
not?
In my view I do not have such jurisdiction. It has been a
longstanding practice to place matters emanating from Magistrate’s
Courts before two judges. It is only in the case of bail
applications where the
Criminal Procedure Act 51 of 1977
expressly
permits such bail appeals to be placed before a single judge.
In this case, the rule of practice, 8.5, states that appeals or
reviews, at least from Magistrate’s Courts, are usually
placed
before two judges.
Rule 8.5
is founded upon the longstanding
practice to place criminal reviews emanating from lower courts
before two judges. I see no reason
why I should cause an exception
to that rule in this particular case.
The ruling of the Deputy Judge President to place the matter before
me as a single judge did not by implication constitute a
definitive
decision that I did have the necessary jurisdiction to deal with the
matter. It is for me to decide that issue. For
the reasons set out
above, I find that I do not have jurisdiction, and for that reason
alone the application should be dismissed.
But even if I were wrong in coming to the aforesaid conclusion and
even if I do have the jurisdiction to deal with this matter,
I would
still not grant the application reviewing the decision of the
magistrate refusing the postponement.
There has been a long line of cases which established a very clear
principle of law that only in very exceptional circumstances
should
a High Court review a lower court’s decision prior to the
completion of the trial. A trial in the Magistrate’s
Court
should be completed before either party can appeal on issues where
they are of the view that the magistrate had misdirected
him or
herself or made an incorrect finding on the facts of the case.
To interrupt trials in the Magistrate’s Court by applications
to this court to rule on the correctness of interlocutory
orders,
cannot be countenanced by this court. If this court were to set a
precedent of allowing the State to come to this court
to attack the
correctness of a refusal to grant a postponement, this court will be
inundated with a flow of reviews which can
never have been intended
by either the long line of cases referred to above, or the
Constitution, which expressly states in section
35, that an accused
is entitled to a speedy trial.
Many applications for postponements in the courts
a quo
by
either the accused or the State are refused by such courts. If all
of them were to be the subject of review applications to
this court,
not only will the administration of justice come into disrepute but
the entire wheels of justice will come to a grinding
halt. This
court would not be able to handle the inordinate flow of review
applications from lower courts.
I am therefore of the view that, even if I do have jurisdiction to
hear this case, such a precedent should not be set in this
particular case. I say that in circumstances where I am, obiter, of
the view that the magistrate may very well have been wrong
in
disallowing the evidence regarding the two search warrants. However,
I speak from a point of view purely looking at the papers
without
the advantage that the ultimate court of review will have when both
sides, including the magistrate have stated their
views. I am
prima
facie
of the view that the decision of the magistrate to
disallow the search warrants into evidence was wrong.
But that still does not entitle a party to come to this court purely
because a postponement to hear that review application,
before
proceeding with the trial, was dismissed. The trial can proceed and
further witnesses may be called. The interlocutory
order may be
subject to a further review by the magistrate at the end of the
case. He is entitled to recall that ruling once
all the evidence has
been placed before him. There are a variety of imponderables which
ultimately may prove the postponement
to have been unnecessary.
Furthermore, the accused may probably be convicted, but he could
also be acquitted. If he is acquitted
then there would be no reason
for all these interruptions in any event. If he is convicted, the
State may appeal the magistrate’s
refusal to allow the search
warrants, as a point of law.
For all of the above reasons, I am of the view that this application
cannot succeed and it is struck from the roll for lack of
jurisdiction of a single judge to hear this matter.
After hearing argument on costs, I make the following order:
The application is struck from the roll with costs.
DATED THE 28
th
DAY OF February 2012 AT JOHANNESBURG
________________________________
C. J. CLAASSEN
JUDGE OF THE HIGH COURT
COUNSEL FOR THE APPLICANT: ADV E. WESSELS
COUNSEL FOR THE RESPONDENTS: ADV M. HELLENS SC
ARGUMENT WAS HEARD ON 27 FEBRUARY 2012