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[2016] ZAGPJHC 39
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Khumalo and Others v Louw and Another (2014/40692) [2016] ZAGPJHC 39 (22 February 2016)
REPUBLIC OF SOUTH AFRICA
IN THE HIGH COURT OF SOUTH AFRICA
GAUTENG LOCAL DIVISION,
JOHANNESBURG
Case number: 2014/40692
DPP ref No.: 9/2/5/7 –
(2014/0474)
Date of review: 22 February 2016
In the matter between:
Khumalo, Victor
Vusi
...........................................................................................................
1
st
Applicant
Bawa,
Hoba-Bako
................................................................................................................
2
nd
Applicant
Cuambo, Argenia
Franscico
................................................................................................
3
rd
Applicant
And
The Magistrate, Mr
Louw
................................................................................................
1
st
Respondent
The Director of Public Prosecutions,
Gauteng Local Division,
Johannesburg
...................................................................................................................
2
nd
Respondent
JUDGMENT
Van der Linde, J
Introduction
[1]
The
three applicants are applying under s.24 of the now repealed Supreme
Court Act 59 of 1959 for a review of criminal proceedings
currently
pending before the Regional Court of Johannesburg. The first
respondent is the Regional Magistrate and the second
respondent the
Director of Public Prosecutions, Gauteng Local Division,
Johannesburg.
[2]
The
Superior Courts Act 10 of 2013
has, in terms of
s.55(1)(a)
read with
item 1 of schedule 1, repealed the whole of the Supreme Court Act,
but s.52(1) contains a savings provision in respect
of proceedings
pending in any court at the commencement of the Act. The Act
commenced on 23 August 2013 by which date the applicants
had been
required to plead, and had pleaded, specifically raising the lack of
jurisdiction of the Johannesburg Regional Court.
So, the proceedings
are deemed, by virtue of
s.52(2)
of the
Superior Courts Act, to
have
been pending when this latter Act came into effect, and the Supreme
Court Act continues to apply.
[3]
S.24 of the latter Act provides as follows:
“
24
Grounds of review of proceedings of inferior courts
(1) The
grounds upon which the proceedings of any inferior court may be
brought under review before a provincial division, or before
a local
division having review jurisdiction, are-
(a)
absence of jurisdiction on the part of the court;
(b)
interest in the cause, bias, malice or the commission of an offence
referred to in Part 1 to 4, or section 17, 20 or 21 (in
so far as it
relates to the aforementioned offences) of Chapter 2 of the
Prevention and Combating of Corrupt Activities Act, 2004
, on the part
of the presiding judicial officer;
[Para. (b)
substituted by
s. 36
(1) of Act 12 of 2004.]
(c)
gross irregularity in the proceedings; and
(d)
the admission of inadmissible or incompetent evidence or the
rejection of admissible or competent evidence.
[Sub-s.
(1) amended by s. 9 of Act 15 of 1969 and by s. 10 of Act 105 of
1982.]
(2)
Nothing in this section shall affect the provisions of any other law
relating to the review of proceedings in inferior courts.”
[4]
The
founding affidavit sets out three substantive grounds of review: that
the first respondent failed to display the required level
of
impartiality by first suggesting to the prosecutor and then
permitting, on the latter’s application, an amendment to the
charge sheet; that the Johannesburg Regional Court had no
jurisdiction because the provisions of
s.111
of the
Criminal
Procedure Act 51 of 1977
had not been complied with; and that the
first applicant was not arrested in South Africa or, at least, if he
was arrested in South
Africa, the heroin entered South Africa
unlawfully under the instruction and assistance of the South African
Police.
[5]
This third ground was not pressed during
the hearing before us, Mr Hamilton, who appeared for the three
applicants, properly recognising
that the first applicant’s
case on that score involved an attack on the merits of the state
evidence. It was thus rather
an appeal than a review. Mr Hamilton
also appreciated that the case for the second and third applicants
could not be founded on
the first two grounds of review, and in
argument limited their case to the delays that had been caused by the
state. But when it
was pointed out to him that the founding affidavit
in the review application does not make out such a case, and that in
any event
the delays were often caused by the applicants’ own
conduct, he did not press the review on behalf of the second and
third
applicants either.
[6]
We
thus deal below with the first applicant’s first two grounds of
review accepting that, although
in media
res
, this is an appropriate case for
considering the application for review concerning, as it does, the
very jurisdiction of the court
of first instance. We commence by
setting out the procedural background.
Procedural
background
[7]
From the docket the following information
appears. The applicants’ first appearance was in the
Johannesburg Regional Court
on 9 April 2009 on a charge of dealing in
drugs. The first applicant had however been arrested on 7 April 2009
in Komatipoort,
which is outside the jurisdiction of the Johannesburg
Regional Court, late at night, when 20,6kg of heroin to the value of
about
R20m was found in his car. The first applicant told the police
that he was delivering the heroin to the third applicant in
Johannesburg.
In a sting operation the police drove the first
applicant through to Johannesburg where the first applicant delivered
the parcel
to the second applicant while the police were observing.
The second and third applicants were then, on 8 April 2009,
arrested.
[8]
From the record of the proceedings it would
appear that the prosecutor explained in open court that the charge
was dealing in drugs
and that the heroin had been found in the first
applicant’s car at the Komatipoort border post. She
explained too that
the first applicant had given information that led
to the arrest of the second and third applicants in Johannesburg.
Cash
that could not be accounted for was found on them. We revert
below on whether the charges were then put to the applicants, and
whether the charge sheet was then lodged with the clerk of the court.
[9]
The
case was remanded to 20 April 2009, and on that occasion it was
recorded that the applicants raised as a special plea
s.106(1)(f)
of
Act 51 of 1977:
“
106
Pleas
(1) When
an accused pleads to a charge he may plead-
(f)
that the court has no jurisdiction to try the offence; …”
.
This was
followed by the words, “
Application subsequently abandoned”.
[10]The matter was again remanded
to a later date for further investigation, but in the meanwhile also
to 29 April 2009 for a bail
application. On that day matters did not
progress because, amongst others, there was a change in legal
representation. The case
was thus remanded to 5 May 2009 for a bail
application; on that day there was no stenographer and it was
remanded to 14 May 2009
for that purpose. Bail proceedings
commenced on that day, and were remanded to 18 May 2009 for further
evidence. The application
did not conclude on this day either, and
was postponed to 25 May 2009 for further evidence. The application
was concluded on this
day, and remanded to the next day for judgment.
[11]On 26 May 2009 bail was
refused. The matter was remanded to 5 June 2009 for a forensic report
and also to arrange a trial date.
On that day the matter was
postponed by agreement to 25 July 2009. As it happened the next
appearance was a day earlier, on 24
July 2009, when the case was
again remanded, at the request of both sides, to 18 August 2009. On
that day the first respondent
presided for the first time. The matter
was then remanded to 25 August 2009 for a trial date to be arranged.
[12]On 24 August 2009 the acting
deputy NDPP issued a direction in terms of
s.11
of the
Criminal
Procedure Act, read
with
s.22(3)
of Act 32 of 1998. It was not
suggested by anyone that the acting deputy NDPP did not have the
written authority so to act.
In terms of the direction, the acting
deputy NDPP deemed it in the interests of the administration of
justice that count 1, dealing
in drugs, and its alternative,
possession of drugs, allegedly committed by the first applicant at or
near Komatipoort within the
area of jurisdiction of the DPP of the
North Gauteng Provincial Division of the High Court, be tried within
the area of jurisdiction
of the DPP of the South Gauteng Provincial
Division of the high Court.
[13]The acting deputy NDPP
accordingly wrote: “
I hereby
direct that the criminal proceedings against the said person in
respect of the said offences, be commenced in the area
of
jurisdiction of the Director of Public Prosecutions of the South
Gauteng Provincial Division of the High Court of South Africa.”
[14]When this direction was
issued the applicants, including the first applicant, had been
arrested and kept in custody; and they,
including the first
applicant, had applied for bail and had had the bail application be
refused. They had not yet pleaded; it was
only later, on 9 May 2011,
that the charges were formally put to all three of them, and
all three pleaded not guilty, and
specifically also denied that the
Regional Court had jurisdiction to try them.
[15]
Returning
to the chronology: on 25 August 2009 the matter was postponed to 8
September 2009 for some issue relating to the docket;
and on 8
September 2009 it was postponed again to 3 February 2010 for trial.
From this latter date the matter was again postponed
on a number of
occasions for a variety of reasons: to 23 March 2010; to 16 April
2010; to 21 May 2010; to 18 June 2010; to 14 July
2010; to 23 August
2010; to 7 September 2010 for what was noted as being “
for
charge sheet and quashing application”
;
to 7 October 2010 “
for application
by defence”
; to 18 October
2010 for the same reason; to 21 October 2010 for argument; to 1
November 2010 “
for all pre-trial
issues to be finalised”
; to 9 May
2011 for trial, when in fact the applicants pleaded not guilty and
raised lack of jurisdiction; and to 10 May 2010 to
allow the
prosecutor time to deal with the special pleas.
[16]On 10 May 2010 the state
handed in the original direction by the acting deputy NDPP, and also
applied to amend the charge sheet
to include a reference to the
offences having been committed “
at
or near Johannesburg and or Komatipoort.”
The application was opposed but after argument, the first respondent
gave a judgment in which he allowed the amendment. The
applicants
then applied for a remand to deal with the amended charge sheet, and
this was granted to 25 October 2011, “
for
further trial.”
It could not
proceed on that day for lack of an interpreter, and stood down to 26
October 2011.
[17]On 26 October 2011 the first
applicant informed the court that, despite the direction of the
acting deputy NDPP, and despite
the amendment of the charge sheet, he
was challenging jurisdiction because, in fact, he had been arrested
before he had entered
South Africa, and not Komatipoort. He told the
court that he was not legally in South Africa, and for that reason
the court had
no jurisdiction over him. He submitted that no element
of the crime had been committed in South Africa. He submitted
that
he had been abducted.
[18]He submitted too that the
so-called centralisation procedure had not been correctly followed
and for that reason too the court
had no jurisdiction. And he
contended that he had not, as was required by s.35 (1)(d) of the
Constitution, been brought before
a court within 48 hours of having
been arrested. After a lengthy exchange between the first applicant’s
attorney and the
first respondent, the matter was remanded to 14
March 2012 “
for further hearing re
the s.106 (f) objection/plea”
.
[19]
Further
postponements followed to 15 March 2012; to 16 April 2012; to 21 May
2012; to 5 September 2012 for trial; and then to 10
September 2012.
On this date the state began calling witnesses dealing with the
jurisdiction issue. Ms Kapp, a SARS employee, testified
that she
arrested the first applicant on the South African side, and handed
him over to inspector Fritz of the SAPS. Inspector
Fritz then
testified. The state then closed its case in respect of the
jurisdiction plea.
[20]The
first applicant then testified in support of his special plea and
closed his case. Following a range of difficulties, including
with
interpreters and legal representation, the matter was postponed
frequently, until it resumed again on 15 May 2013. On that
day the
second and third appellants withdrew their objection to the
jurisdiction of the court.
[1]
[21]After a further remand to 5
June 2013, the first applicant addressed the court on the special
plea of jurisdiction. After addressing
the court, the second and
third applicants’ new representative told the court that they
were persisting in their plea of
lack of jurisdiction. The matter was
then postponed to 18 September 2013 to receive further submissions
concerning jurisdiction.
The first respondent was not available then,
and it was postponed again to 9 October 2013. On that day the first
respondent gave
a brief judgment dismissing the special pleas. It was
then remanded to 14 April 2014 for trial.
[22]
On
that day there was a withdrawal of legal representatives, and the
matter was remanded to 24 April 2014 for the second and third
applicants to obtain legal representatives. It was then remanded to 7
August 2014 for trial. The record does not reflect what happened
in
that day and the next matter of moment is the notice of motion in
terms of rule 53 dated 5 November 2014. We were informed from
the Bar
that in fact the trial is proceeding on the merits, and that the
state had not yet closed its case.
[23]Against this background it is
convenient first to deal with the validity of the direction issued by
the acting deputy NDPP,
and thereafter with the submission of
perceived bias evidenced by the first respondent’s conduct
relative to the amendment
of the charge sheet.
The
direction issued by the acting deputy NDPP
[24]The direction is quoted
above. The trawl of relevant statutory provisions starts with
s.35(1)(d) of the Constitution:
“
35
Arrested, detained and accused persons
(1)
Everyone who is arrested for allegedly committing an offence has the
right-
(d) to be brought before a court as
soon as reasonably possible, but not later than-
(i)
48 hours after the arrest; or
(ii) the end of the first
court day after the expiry of the 48 hours, if the 48 hours expire
outside ordinary court hours or on
a day which is not an ordinary
court day;
(e) at the
first court appearance after being arrested, to be charged or to be
informed of the reason for the detention to continue,
or to be
released;…”.
[25]
The
earlier suggestion by the first applicant that he had not been
brought before a court in accordance with these precepts is not
raised in the review. One must accept that the first appellant was
arrested on 7 April 2009 and brought before the Johannesburg
Regional
Court on 9 April 2009, within 48 hours, or at least before the end of
the first day after the expiry of the 48 hours.
[26]The point here is that he
was, at best for the state, arrested in Komatipoort, which is within
the area of jurisdiction of the
DPP for the North Gauteng Provincial
Division, and immediately driven through to Johannesburg, where his
first appearance was before
the Regional Court of the South Gauteng
Local Division. This is in the area of jurisdiction of the DPP
for the South Gauteng
Local Division, which is a different area of
jurisdiction. At that stage the direction of the acting deputy NDPP
had not yet been
given.
[27]At the first appearance on 9
April 2009 before that regional court, the applicants were, according
to the record, told that
the charge against them was dealing in
drugs. It is not clear from the record whether they were
actually charged, in the
sense of the charges being put to them, or
whether they were simply told that such a charge was being
investigated, and that they
were being detained for that reason.
[28]It is also unclear from the
record whether as of that date the charge sheet was lodged with the
clerk of the court. S.76 of
the Criminal Procedure Act provides:
“
76
Charge-sheet and proof of record of criminal case
(1) Unless
an accused has been summoned to appear before the court, the
proceedings at a summary trial in a lower court shall be
commenced by
lodging a charge-sheet with the clerk of the court, and, in the case
of a superior court, by serving an indictment
referred to in section
144 on the accused and the lodging thereof with the registrar of the
court concerned.”
[29]It is accordingly not clear
whether in this sense the “
proceedings”
had commenced against the applicants on the date of the first
appearance. When the matter was argued before us we were however
told
by the state from the Bar that we could accept that the charge sheet
would have been lodged with the clerk of the court on
that day, since
this was the invariable practice in the lower courts. We were
also told that we could accept that the charges
were not formally put
to the applicants, in the sense of expecting of them to plead to
these then and there. We accordingly approach
the review on that
basis.
[30]After that first appearance
there followed a number of appearances before the direction was
issued on 24 August 2009 in terms
of
s.111
of the
Criminal Procedure
Act, read
with
s.22(3)
of the
National Prosecuting Authority Act 32
of 1998
.
[31]S.111 of the
Criminal
Procedure Act provides
in relevant part as follows:
“
111
Minister may remove trial to jurisdiction of another attorney-general
(1) ......
[Sub-s.
(1) substituted by
s. 6
(a) of Act 26 of 1987 and deleted by s. 44 of
Act 32 of 1998.]
(1) (a)
The direction of the National Director of Public Prosecutions
contemplated in section 179 (1) (a) of the Constitution of
the
Republic of South Africa, 1996, shall state the name of the accused,
the relevant offence, the place at which (if known) and
the Director
in whose area of jurisdiction the relevant investigation and criminal
proceedings shall be conducted and commenced.
(b) A copy
of the direction shall be served on the accused, and the original
thereof shall, save as is provided in subsection (3)
be handed in at
the court in which the proceedings are to commence.
[Sub-s.
(1), previously sub-s. (2), amended by s. 6 (b) of Act 26 of 1987 and
renumbered and substituted by s. 44 of Act 32 of 1998.]
(2) The
court in which the proceedings commence shall have jurisdiction to
act with regard to the offence in question as if the
offence had been
committed within the area of jurisdiction of such court.
[Sub-s.
(2), previously sub-s. (3), renumbered and substituted by s. 44 of
Act 32 of 1998.]
(3) Where
the National Director issues a direction contemplated in subsection
(1) after an accused has already appeared in a court,
the original of
such direction shall be handed in at the relevant proceedings and
attached to the record of the proceedings, and
the court in question
shall-
(a)
cause the accused to be brought before it, and when the accused is
before it, adjourn the proceedings to a time and a date and
to the
court designated by the Director in whose area of jurisdiction the
said criminal proceedings shall commence, whereupon such
time and
date and court shall be deemed to be the time and date and court
appointed for the trial of the accused or to which the
proceedings
pending against the accused are adjourned;
(b)
forward a copy of the record of the proceedings to the court in which
the accused is to appear, and that court shall receive
such copy and
continue with the proceedings against the accused as if such
proceedings had commenced before it.
[Sub-s.
(3), previously sub-s. (4), amended by s. 6 (c) of Act 26 of 1987 and
renumbered and substituted by s. 44 of Act 32 of 1998.]”
[32]And
s.22(3)
of the
National
Prosecuting Authority Act provides
as follows:
“
22
Powers, duties and functions of National Director
(3) Where
the National Director or a Deputy National Director authorised
thereto in writing by the National Director deems it in
the interest
of the administration of justice that an offence committed as a whole
or partially within the area of jurisdiction
of one Director be
investigated and tried within the area of jurisdiction of another
Director, he or she may, subject to the provisions
of section 111 of
the Criminal Procedure Act, 1977 (Act 51 of 1977), in writing direct
that the investigation and criminal proceedings
in respect of such
offence be conducted and commenced within the area of jurisdiction of
such other Director.”
[33]Some preliminary remarks must
be made. First, the reference in s.111(1)(a) to s.179(1)(a) of
the Constitution does not
add anything to our present enquiry.
That section of the Constitution simply says:
“
179
Prosecuting authority
(1) There
is a single national prosecuting authority in the Republic,
structured in terms of an Act of Parliament, and consisting
of-
(a)
a National Director of Public Prosecutions, who is the head of the
prosecuting authority, and is appointed by the President,
as head of
the national executive; …”.
[34]Second, our focus for present
purposes is not on the basis that the charge sheet was lodged with
the clerk of the court only
on or after 24 August 2009; then there is
no issue. Our focus is based on our assumption, already made as
explained above,
that the charge sheet was lodged with the clerk of
the court before that date, and therefor that before 24 August 2009
“
proceedings”
had already “
commenced”
,
at least for the purposes of
s.76
of the
Criminal Procedure Act, by
the time the NDPP direction was issued on 24 August 2009.
[35]Third,
our approach is that the interpretation of statutes is to be done
consistently with the Constitution. As was said in
Cool Ideas 1186 CC
v Hubbard and Another:
[2]
“
[28] A fundamental tenet of
statutory interpretation is that the words in a statute must be given
their ordinary grammatical meaning,
unless to do so would result in
an absurdity. There are three important interrelated
riders to this general principle,
namely:
(a) that
statutory provisions should always be interpreted purposively;
(b) the
relevant statutory provision must be properly contextualised;
and
(c)
all statutes must be construed consistently with the Constitution,
that is, where reasonably possible, legislative provisions
ought to
be interpreted to preserve their constitutional validity. This
proviso to the general principle is closely related to
the purposive
approach referred to in (a).”
[36]We would respectfully add
that most documents, whether commercial contracts or statutes, convey
a structure or scheme, and the
interpretative function must seek to
establish what it is. Words then have a meaning that fit that scheme.
[37]Against this background we
suggest that the following observations correctly discern the
legislative scheme and accord with
the ordinary grammatical meaning
of the language used.
[38]First, by virtue of s.35 of
the Constitution, persons who are arrested become “
accused”
persons within 48 hours of arrest. They will, within that time frame,
have been brought before a court for their first appearances.
When
the
Criminal Procedure Act and
the
National Prosecuting Authority Act
then
refer to an “
accused”
in the sections we will interpret, it is this person who is either in
custody, or on bail or warning, after the first appearance.
[39]However, it is not
necessarily a person who will have been asked to plead; in fact, it
is likely not a person who will have
been asked to plead, since the
investigation will likely still be ongoing. It is also not
necessarily a person to whom a charge
has been put, because in terms
of s.35(1)(e) of the Constitution the accused may simply be informed
of the reason for the detention
to continue. Is it necessarily
a person in respect of whom a charge sheet will have been lodged with
the clerk of the court?
[40]We have taken cognisance of
what Mr Mohamed for the state has told us from the Bar. He has
explained that the procedure of continued
detention and postponements
pending further investigations cannot be set in motion and be
continued unless a form J15, which is
headed “Charge Sheet”,
is completed, thereby in effect establishing a charge sheet. At the
early stages its attachment,
intended to reflect the charges
preferred against the accused, may be in broad terms; but it is no
less a charge sheet.
[41]That document is given to the
clerk of the court, and so, we were advised, a charge sheet is
inevitably then lodged with the
clerk of the court, whether or not a
charge is actually put to the accused, and whether or not the matter
is postponed for further
investigation.
[42]Second, one then moves to
s.22
(3) of the
National Prosecuting Authority Act. The
scheme of the
power there conferred is concerned with and involves the moving of
two things: both the investigation and the criminal
proceedings from
the area of territorial jurisdiction of one DPP to the area of
territorial jurisdiction of another DPP. The exercise
by the director
of the power concerned requires only that she deems it in the
interests of justice that an offence committed as
a whole or in part
within the area of territorial jurisdiction of one DPP, be
investigated and tried within the area of territorial
jurisdiction of
another DPP.
[43]Importantly, however, the
exercise of the power is subject to the provisions of
s.111
of the
Criminal Procedure Act, to
which we revert. It is also important to
underscore that the necessary prerequisite for the exercise of the
power is that, as an
objective fact, the whole or at least part of
the offence is required to have been committed within the
transferring area of territorial
jurisdiction of a DPP.
[44]Third, the timing of the
exercise of that power is also alluded to in
s.22(3)
, although not
expressly; in respect of the criminal proceedings, as opposed to mere
investigations, it is said that the NDPP shall
direct that the
criminal proceedings “
be …
commenced”
within the area
of jurisdiction of the transferee director. The section does
not deal expressly with the case where “
proceedings”
have already “
commenced”
in a court for the purposes of
s.76
of the
Criminal Procedure Act.
[45]As
regards investigations,
s.22(3)
does not say that these will only be “
commenced”
with in the second area of jurisdiction; it simply says that the
investigations shall be “
conducted”
in that second area. This does not suggest that the fruits of that
part of the investigations that had already been conducted,
somehow
become inadmissible.
[46]This makes sense, because one
would assume that in a perfect world, first come the investigations,
and only thereafter, once
the NDPP knows what charges to prefer
against the accused, then come the criminal proceedings. The factors
that the NDPP will want
to take into account might only become known
to her after the investigation will in fact have commenced.
[47]Fourth, one then moves back
to the
Criminal Procedure Act, this
time to
s.111(3).
Thus far we
have seen that according to
s.76
“
proceedings”
“commence”
already when at
the first appearance in the lower court the charge sheet is lodged
with the clerk of the court. We have also seen
that
s.22(3)
is silent
as to when the direction may be issued; and that the exercise of the
s.22(3)
power is “
subject to”
s.111.
The focus now is therefore whether
s.111(3)
deals with when
the direction may be issued.
[48]
We
suggest that from that subsection it is expressly evident that the
NDPP may actually issue the direction later than at the first
appearance, and only some way into the subsequent appearances before
the transferor court. This appears from the following. One,
the
express hypothesis of the subsection is that the accused will already
have appeared in court. Two, these appearances are described
as
“
proceedings”
in the introductory part of the subsection. Three, in paragraph (a)
of
s.111(3)
the legislature uses “
proceedings”
to refer to the proceedings then on-going before the first court, and
refers to the second court as the court in whose area of
jurisdiction
“
the said criminal proceedings
shall commence”
. Four, finally,
in paragraph (b) the legislature expressly envisages that the
proceedings will have commenced before the first
court, but then
despite that deems the second court as the court before whom the
proceedings had commenced: “…
and
that court shall receive such copy and continue with the proceedings
against the accused as if such proceedings had commenced
before it.”
[49]We therefore conclude that
there can be no doubt that a direction in terms of
s.22(3)
of the
National Prosecuting Authority Act may
validly be issued after
“
proceedings”
had “
commenced”
for the purposes of
s.76
of the
Criminal Procedure Act.
[50]But
it is equally clear, we
suggest, that irrespective of when the power is exercised, it is an
essential prerequisite for its exercise
that either the whole or at
least a part of the offence is required to have been committed, as a
fact, within the area of the transferor
jurisdiction. The question is
whether one is concerned with the area of jurisdiction of a DPP or
the area of jurisdiction of a
court.
[51]If the power is exercised
before the accused will have appeared in a court, that presents no
difficulty.
S.22(3)
of the
National Prosecuting Authority Act
applies
, and the offence, either in whole or in part, is expressly
required to have been committed, as a fact, within the area of
territorial
jurisdiction of a DPP.
[52]However, if the power is
exercised only after the accused will have appeared in a court, the
necessary implication is that,
either the whole or at least a part of
the offence is required to have been committed, as a fact, within the
area of jurisdiction
of the first court, in which the proceedings
will actually have commenced. We say that this is a matter of
necessary implication,
for the following reasons.
[53]One, there is a deliberate
change in wording between
s.22(3)
and s.
111
(3): in
s.22(3)
the
reference is to the jurisdiction of a DPP, whereas in
s.111(3)
the
reference is to the jurisdiction of a court. For example, in
paragraph (a) of
s.111(3)
it is expressly stated that the direction
of the NDPP will designate a court in whose jurisdiction the
proceedings will commence,
whereas
s.22(3)
refers to the proceedings
commencing within the area of jurisdiction of a DPP. Yet, since the
fountain of the power is
s.22(3)
and not
s.111(3)
, one can accept
that the same underlying concept, namely that the offence is required
to have been committed wholly or in part,
as a fact, within the area
of the first jurisdiction, will apply also under
s.111(3).
[54]Two, and perhaps simply put
differently, the
s.22(3)
power was not intended to infuse
jurisdiction into a court in which proceedings have commenced without
there being jurisdiction
in the first place to have conducted those
proceedings. The power was, to the contrary, intended to remove an
accused from the
area of jurisdiction of one DPP where there was in
fact territorial jurisdiction, to the area of jurisdiction of another
DPP where
there was in fact no territorial jurisdiction. Where the
court will have become involve since the accused will have already
appeared
in it, this being the hypothesis of
s.111(3)
, the court and
its jurisdiction is substituted for the DPP and her jurisdiction.
[55]Three, if the
s.22(3)
power
is exercised only once the accused has already appeared in a court,
the power created by
s.22(3)
was intended to serve the same purpose;
but since proceedings will already have commenced, it is implicit
that the proceedings
will now have come under the authority of the
court, and no longer the authority of the DPP.
[56]Four, although
s.22(3)
of the
National Prosecuting Authority Act states
that it is “
subject
to”
s.111
of the
Criminal
Procedure Act, it
is the former and not the later which is the
power-creating or taxing section or provision;
s.111
deals with
procedural aspects of the direction, but
s.22(3)
creates it. There is
no basis for supposing that the purpose for which the power was
granted will have undergone a change once
the court has assumed
authority over the proceedings.
[57]When this conclusion on the
interpretation of the relevant statutory provisions is then applied
to the facts of this case, the
inevitable result is the following.
The conduct of the first applicant which is said to constitute the
criminal offence, was committed
at or near Komatipoort. Criminal
proceedings against the applicant commenced on 9 April 2009 in the
Johannesburg Regional Court.
[58]Since the offence with which
the first applicant was charged was not committed in whole or in part
in the territorial jurisdiction
of the Johannesburg Regional Court,
that court had no territorial jurisdiction to commence and to
continue the criminal proceedings
against the first applicant. Later
during that year the acting deputy NDPP issued the direction.
Since the first applicant
had by then already appeared in a court,
s.111(3)
of the
Criminal Procedure Act applied
to that direction.
[59]However, the direction could
not comply with
s.111(3)
, for these reasons: first, the court in
whose area of territorial jurisdiction the proceedings had already
commenced by then did
not have jurisdiction over the first applicant.
There was accordingly no power to issue a direction under
s.22(3)
,
because the essential prerequisite for its exercise was lacking.
Second, since only one court was involved as both transferor
and
transferee court, there could not be a transfer from one court to
another court as envisaged in
s.111(3).
[60]The upshot of this is that,
given the timing, what was required for the lawful exercise of the
direction, was that such proceedings
as had by then already
commenced, must have commenced in a court of the same territorial
jurisdiction as that of the DPP in which
the whole or at least a part
of the offence had been committed, being the DPP of the North Gauteng
Provincial Division of the High
Court. That did not happen and the
proceedings commenced in a court which had no jurisdiction over the
applicant.
[61]The
result that we have reached is consonant with the result reached by
the Supreme Court of Appeal in S v Mamase.
[3]
That court, however, in reaching its conclusion, approved of the
reasoning of Nepgen, J in the unreported judgment of S v
Mpanbaniso,
[4]
who concluded that no other court than the court in which criminal
proceedings commenced, can have jurisdiction in terms of a written
direction. The learned judge thus concluded that this of necessity
requires, “…
such written
direction to have been issued prior to the commencement of the
criminal proceedings.”
[62]These two courts were
concerned with criminal trials in the high court, and the dimension
of the charge sheet being lodged already
with the first appearance,
does not apply there. Likewise, the impact of
s.111(3)
of the
Criminal Procedure Act on
that scenario was not required to be
considered; but given the same result, nothing turns on this.
[63]Given the similarities in the
result to which we have come, and the inordinate delays that have
taken place, the dicta in the
penultimate paragraph applies
equally here:
“
[17]
What is alarming about this case is that considerable delay and costs
could have been avoided if a simple and practical solution
to the
problem was adopted: the charges could have been withdrawn,
another direction issued and the appellants served with
a fresh
indictment. There was no apparent reason why such a course could not
be followed and completed in a matter of hours. Counsel
on behalf of
the respondent could not offer any reason why such a course was not
open to it.”
[64]In conclusion then, since in
our constitutional democracy all public power must be exercised in
terms of the Constitution or
legislation under it, it follows, in our
view, that the exercise of the power in this case was not lawful. We
deal with the consequence
of that conclusion below when discussing
remedies.
Amending
the charge sheet and perceived bias
[65]The events that give rise to
this ground of review occurred on 9 and 10 May 2011. On a thumbnail,
it is that the first respondent
coaxed the prosecutor into amending
the charge sheet to include the reference to the offences having been
committed in Komatipoort.
It is said that this conduct led to a
reasonable perception of bias on the part of the first applicant.
[66]Mr
Mohamed raised essentially two points in response. The first is that
in a criminal trial the judge or magistrate is not simply
an
objective umpire, there to observe that the rules are observed by
both sides. The judge or magistrate has to see, first and
foremost,
that justice is done. Reliance was placed on R v Hepworth.
[5]
[67]The second point was that the
first applicant had a remedy which he could have exercised at the
time; it was to have applied
for the recusal of the first respondent.
And since he did not exercise that remedy, a review is not open now.
[68]In
our view a case for perceived bias has not been made out, not on the
facts, and not on the law. Starting with the latter,
the first
respondent in his reasons referred to a judgement in the Supreme
Court of Appeal in Take and Save Trading CC and Others
v Standard
Bank of SA Ltd.
[6]
The court was concerned with the test to be applied when a recusal
application was brought on the basis of a perception of bias.
[69]We quote liberally from this
judgement, including the first paragraph which provides the correct
perspective:
“
[1]
During the course of the plaintiff's case in a trial, and at a
crucial stage when the last of the plaintiff's witnesses had
to be
cross-examined, the defendants' legal team withdrew without
proffering any reason. The defendants represented by one of them
(Mr
Mansoor) then applied for a postponement of the trial. The learned
trial Judge (P C Combrinck J in the Durban and Coast Local
Division)
debated the merits of the postponement application with him because
it seemed to the Judge that the application was nothing
but a
tactical move to gain time. During the course of the debate the Judge
expressed in no uncertain terms that he thought that
there was little
merit in two aspects of the defendants' case and that the
postponement would have amounted to an exercise in futility;
the
other defences depended on Mansoor's evidence, which he, the Judge
suggested, could give without the benefit of counsel. Eventually,
however, the Judge granted a postponement. When the matter was again
enrolled, the defendants, now represented by another counsel,
applied
by way of notice of motion for the Judge to recuse himself. He
refused the application and the subsequent one for leave
to appeal
met the same fate. This Court eventually granted leave.
[2]
Everyone is entitled to a fair trial and that includes the right to a
hearing before an impartial adjudicator. This common-law
right is now
constitutionally entrenched. Present a reasonable apprehension of
bias, the judicial officer is duty bound to recuse
him or herself.
The law in this regard is clear, having been the subject of recent
judgments of both this Court and the Constitutional
Court, and does
not require any restatement. It is nevertheless convenient for
present purposes to quote the following extracts
from a
Constitutional Court judgment for purposes of emphasis and because
they are particularly germane to this case:2
The
question is whether a reasonable, objective and informed person would
on the correct facts reasonably apprehend that the Judge
has not or
will not bring an impartial mind to bear on the adjudication of the
case, that is a mind open to persuasion by the evidence
and the
submissions of counsel.'
'At
the same time, it must never be forgotten that an impartial Judge is
a fundamental prerequisite for a fair trial and a judicial
officer
should not hesitate to recuse herself or himself if there are
reasonable grounds on the part of the litigant for apprehending
that
the judicial officer, for whatever reasons, was not or will not be
impartial.'
[3] That
is one side of the coin. The other is this:3
'A
criminal trial is not a game where one side is entitled to claim the
benefit of any omission or mistake made by the other side,
and a
Judge's position in a criminal trial is not merely that of an umpire
to see that the rules of the game are observed by both
sides. A Judge
is an administrator of justice, he is not merely a figure head, he
has not only to direct and control the proceedings
according to
recognised rules of procedure but to see that justice is done.'
The same
applies to civil proceedings: a Judge is not simply a 'silent
umpire'.4 A Judge 'is not a mere umpire to answer
the
question ''How's that?''' Lord Denning once said.5 Fairness of
court proceedings requires of the trier to be actively
involved in
the management of the trial, to control the proceedings, to ensure
that public and private resources are not wasted,
to point out when
evidence is irrelevant, and to refuse to listen to irrelevant
evidence. A supine approach towards litigation
by judicial officers
is not justifiable either in terms of the fair trial requirement or
in the context of resources. One of the
oldest tricks in the book is
the practice of some legal practitioners, whenever the shoe pinches,
to withdraw from the case (and
more often than not to reappear at a
later stage), or of clients to terminate the mandate (more often than
not at the suggestion
of the practitioner), to force the court to
grant a postponement because the party is then unrepresented.
Judicial officers have
a duty to the court system, their colleagues,
the public and the parties to ensure that this abuse is curbed by, in
suitable cases,
refusing a postponement. Mere withdrawal by a
practitioner or the mere termination of a mandate does not, contrary
to popular belief,
entitle a party to a postponement as of right.
[4] A
balancing act by the judicial officer is required because there is a
thin dividing line between managing a trial and getting
involved in
the fray. Should the line on occasion be overstepped, it does not
mean that a recusal has to follow or the proceedings
have to be set
aside. If it is, the evidence can usually be reassessed on appeal,
taking into account the degree of the trial court's
aberration.6
In any event, an appeal in medias res in the event of a refusal to
recuse, although legally permissible, is
not available as a matter of
right and it is usually not the route to follow because the balance
of convenience7 more often
than not requires that the case be
brought to a conclusion at the first level and the whole case then be
appealed.”
[70]As to the facts: the
whole issue concerning the first applicant having been arrested at
Komatipoort loomed large. Three
aspects here are relevant. First, the
first respondent had earlier refused the state’s application to
put in the direction
on what appeared to us to be a flimsy ground:
that a copy and not the original was being tendered. This was a
strange ruling,
because although s.111(1)(b) required the original to
be handed in, everyone must have known that it would be a mere
administrative
step to obtain the original and then to hand it in.
When the prosecutor then asked that the case stood down till the next
morning
to get hold of the original, this too was refused.
[71]That ruling could hardly have
pleased the prosecutor, and likely enamoured the first applicant. And
it is not impossible that
the first respondent was concerned that his
ruling did not serve the interests of justice when later,
predictably, the original
was in fact availed and handed up.
[72]Second, the original
direction was handed in without objection. It expressly (though
ineffectually, as we have found)
sought to confer jurisdiction over
the Komatipoort conduct on the Johannesburg Regional Court.
Aligning the charge sheet
with the direction which was handed in by
consent, hardly seems momentous or unfair.
[73]And third, certainly at some
stage the charge sheet likely expressly asserted that the offences
were committed also at Komatipoort.
This much appears from the
third applicant’s request for further particulars, paragraph 2,
where she asked: “
Precisely where
in ‘Komatipoort and or Johannesburg’ in the Regional
Division of Gauteng did the accused allegedly commit
the offence of
having contravened the provisions of section 5(b) read with sections
1, 13, 17 to 25 and 64 of the Drugs and Drug
Trafficking Act 140 of
1992 (dealing in drugs)?”
[74]The poor state of the record
does not reveal that charge sheet, but it was in existence before the
amendment was sought, as
the request for further particulars was
dated 16 June 2010.
[75]In summary, the conduct of
the first respondent on this issue reveals rulings both for and
against the first applicant. Moreover,
the original direction having
been handed in by consent, the amendment of the charge sheet was
really a shoe-in.
[76]We therefore conclude that
this ground of review has not been shown.
Remedy
[77]We have concluded that the
direction, an administrative act, was not lawfully issued. The
question is as to the appropriate
remedy, since it is not every
unlawful administrative act that is set aside. It depends on the
interests of justice. Here however
the fair trial rights of the
applicant are involved as is the jurisdiction of courts of law.
[78]In our view the direction
must be declared unlawful and it must be set aside. Such consequences
as may flow from this order
must be left to the parties to resolve.
No costs were asked.
[79]In the result we make the
following order:
(a)
It is declared that the direction
purportedly issued by the acting deputy National Director of Public
Prosecutions on 24 August
2009 in the case of The State v Victor Vusi
Khumalo is of no force or effect, and it is set aside.
WHG van der Linde
Judge
of the High Court
I agree
R Francis
Acting
Judge of the High Court
Shaun
Hamilton Attorneys
Applicants’
Attorneys
140 Milner
Road
Roosevelt
Park
Johannesburg
Tel: 011 7606820
Adv. F. Mohamed
(0847011099)
Second Respondent’s
Counsel
The State Attorney
Respondents’
Attorneys
10
th
North
State Building
Market Street
Johannesburg
Date of Judgment:
26 February 2016
[1]
Record, p531.
[2]
2014(4) SA 474 (CC) at [28].
[3]
2010(1)SACR 121 at [10] to [16].
[4]
Case no 32/2006, decided in Bisho High Court.
[5]
1928 AD 265
at 277.
[6]
2004(4) SA 1 (SCA) at [1] to [4].