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[2015] ZAGPJHC 75
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Hartley v Presiding Magistrate D Court Krugersdorp Magistrates Court and Others (02538/2015) [2015] ZAGPJHC 75 (21 April 2015)
IN
THE HIGH COURT OF SOUTH AFRICA
GAUTENG
LOCAL DIVISION, JOHANNESBURG
Case
number: 02538/2015
DATE:
21 APRIL 2015
In
the matter between:
PAUL
NICHOLAS
HARTLEY
................................................................................................
Applicant
And
THE
PRESIDING MAGISTRATE
D
COURT KRUGERSDORP MAGISTRATES
COURT
.........................................
First
Respondent
THE
PUBLIC PROSECUTOR
D
COURT KRUGERSDORP MAGISTRATES
COURT
.....................................
Second
Respondent
THE
DIRECTOR OF PUBLIC PROSECUTIONS
GAUTENG
– THE NATIONAL PROSECUTING
AUTHORITY
..............................................................................................................
Third
Respondent
THE
MINISTER OF JUSTICE & CONSTITUTIONAL
DEVELOPMENT
N.O
............................................................................................
Fourth
Respondent
SUMMARY:
Accused
in criminal trial brings application for stay of prosecution on
charge of assault with intent to commit grievous bodily
harm - this
application occasioned postponement of proceedings in trial court but
none of respondents filed any response or set
out in facts in
relation thereto – section 342A deals with procedure to be
followed and factors to be considered. Superior
court without
sufficient facts on which to make a decision – trial court is
in a position to make an appropriate intervention.
JUDGMENT
SATCHWELL
J:
INTRODUCTION
1.
Mr Hartley, the applicant,
appears in person asking for an order that a criminal prosecution
against him of assault with intent
to commit grievous bodily harm be
stayed. There has been service upon all respondents but only the
presiding magistrate has responded
thereto – giving notice to
abide the decision of this court.
2.
The notice of motion and
founding affidavit are replete with irrelevant material alleging
conspiracies on the part of neighbours
and complainants,
incompetencies of the SAPS, the prosecution and the magistrate. It
has been quite difficult to fathom the true
basis of this application
and the facts upon which it is based.
3.
Regrettably, as I have
indicated above, the prosecution in this matter has failed to respond
to the averments in the founding affidavit.
I am most reluctant to
simply accept them unchallenged but note that, although prosecution
and the office of the DPP were aware
of this application, these
functionaries failed to deal therewith.
4.
A charge of assault with
intent to commit grievous bodily was instituted against Hartley in
the Krugersdorp magistrate court on
30
th
August 2013 under case D 2067/13. According to Hartley, he has
appeared in court no less than 14 times. It would seem that he has
pleaded and that certain witnesses have given evidence. However,
the matter has previously been postponed by reason of the
non-availability of an interpreter for a witness. At the present
time, the trial is adjourned pending the outcome of Hartley’s
application to this court.
5.
This court is loath to
interfere in the proceedings of another court – notwithstanding
that the relevant statute permits same
and that it appears that the
presiding judicial officer and the prosecution in the criminal trial
do not appear to have attempted
to resolve the issues complained of.
However, by reason of the confusion of the papers before this court,
I would be very reluctant
to make any order at all involving another
court without a full investigation and corroborated facts being
presented.
SECTION
342A OF THE CRIMINAL PROCEDURE ACT
6.
If indeed, there has been
undue or unnecessary or unreasonable delay in conducting this
criminal trial and this has been prejudicial
to Hartley there is a
remedy for which provision is made in the section 342A of the
Criminal Procedure Act.
[1]
This section was introduced in 1996 in order to ensure that the
Constitutional promise of conclusion of a criminal “without
unreasonable delay” is effected.
7.
Should the accused,
Hartley, have brought what he considers to be “unreasonable
delay” to the attention of the presiding
magistrate or should
the presiding magistrate herself/himself have been/become concerned
as to such delay and should there appear
to be any prejudice
resulting therefrom, then that presiding magistrate would have had
regard to the factors set out in section
342A(2)
[2]
and, after consideration, have made an appropriate intervention.
[3]
8.
In the present case,
Hartley has pleaded and “exceptional circumstances” must
be found to exist and all other attempts
to speed up this trial have
failed, before any court may make an appropriate order. I have no
idea of the basis of the representation
of Hartley at the trial and
accordingly do not know whether or not any legal representative has
raised this issue with the court
or counseled Hartley in regard
thereto. I do not know if this issue has been pertinently raised at
all with the trial court.
9.
What I do know is that
Hartley’s papers commence with local and then move on to
regional conspiracy, aver incompetence within
a multitude of State
organs and do not crisply spell out that this is an application for a
stay of proceedings on the basis of
“unreasonable delay”
nor detail the facts upon which this might be found. It may be that
the presiding magistrate has
not been afforded an opportunity to
consider section 342A of the CPA.
10.
There is a transcript of a
portion of the proceedings in the trial court which suggest that at
least one postponement was granted
merely on the basis of the absence
of an interpreter and that the trial was postponed for months for
this application to be heard.
11.
Accordingly, I do not
propose to institute any investigation which it may be within my
powers to so do in terms of subsection 342A(6).
12.
For these reasons I do not
propose to deal with the Constitutional right to a trial without
“unreasonable delay” or
the considerations relevant to a
stay of prosecution.
13.
The application for a stay
of prosecution is dismissed.
DATED
AT JOHANNESBURG 21
st
APRIL 2015
SATCHWELL
J
Dates
of hearing: 15
th
April 2015.
Date
of judgment: 21
st
April 2015.
[1]
51 of 1977.
[2]
The duration of the
delay; The reasons advanced for the delay; Whether any person can be
blamed for the delay; The effect of the
delay on the personal
circumstances of the accused and witnesses; The seriousness, extent
or complexity of the charge or charges;
Actual or potential
prejudice caused to the state or the defence by the delay,
including a
weakening of the quality of evidence, the possible death or
disappearance or non-availability of witnesses, the loss
of
evidence, problems regarding the gathering of evidence and
considerations of cost; The effect of the delay on the
administration
of justice; The adverse effect on the interests of
the public or the victims in the event of the prosecution being
stopped and
discontinued; and Any other factor which in the opinion
of the court ought to be taken into account.
[3]
Refusing further
postponement of proceedings; Granting a postponement subject to any
such conditions as the court may determine;
Where the accused has
not yet pleaded to the charge, that the case be struck off the roll
and the prosecution not be resumed
or instituted
de
novo
without written instruction of the Director of Public Prosecution;
Where the accused has pleaded to the charge and the state
or the
defence, as the case may be, is unable to proceed with the case or
refuses to do so, that the proceedings be continued
and disposed of
as if the case for the prosecution or the defence, as the case may,
has been closed; that: the state must pay
the accused concerned the
wasted costs incurred by the accused as a result of
an unreasonable delay caused by an officer
employed by the
state; the accused or his or her legal adviser, as the case may be,
must pay the state the wasted costs incurred
by the state as a
result of an unreasonable delay caused by the accused or
his or her legal adviser, as the case may
be; or the matter be
referred to the appropriate authority for an administrative
investigation and possible disciplinary
action against any person
responsible for the delay.