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[2016] ZAGPJHC 105
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S v Maitland (A59/14) [2016] ZAGPJHC 105 (6 May 2016)
IN
THE HIGH COURT OF SOUTH AFRICA
GAUTENG
LOCAL DIVISION, JOHANNESBURG
CASE
NO: A59/14
DATE:
06 MAY 2016
In
the matter between:
THE
STATE
...............................................................................................................................
Appellant
And
MAITLAND,
MARK
.............................................................................................................
Respondent
JUDGMENT
MUDAU
J:
[1]
This is an appeal by the Director of Public Prosecutions (the DPP)
brought in terms of s 310 of the Criminal Procedure Act
51 of 1977
(the CPA) against the decision of a regional court magistrate,
Germiston, to acquit the respondent at the end of a trial.
On 23
January 2008 the accused was charged with,
inter
alia,
being in possession of an
unlicensed firearm in contravention of the provisions of s5, read in
conjunction with other relevant
provisions of the Firearms Control
Act 60 of 2000 (two counts), possession of ammunition, possession of
stolen property (two counts),
theft as well as contravention of the
relevant provisions of the Exchange Control Regulations read with
certain provisions of the
Currency and Exchanges Act 9 of 1933 as
amended.
[2]
The DPP
addressed
a notice in which he suggested how the question of law should be
framed in terms of s310 of the CPA requiring the magistrate
to state
a case for consideration by the High Court. The magistrate replied to
the document by stating a case (“the First
Stated Case”)
which fell short of the legal requirements. It is common cause that
the DPP was not satisfied with the First
Stated Case and addressed a
second notice to the magistrate. In response to this, the magistrate
issued a further document (“the
Second Stated Case’’).
The issue in this appeal is whether the concerns raised by the DPP as
grounds of appeal are
matters of law or factual findings that cannot
be appealed against.
[3]
S 310 of the CPA relied upon relevant to this appeal provides as
follows:
“
(1)
When a lower court has in criminal proceedings given a decision in
favour of the accused on any question of law, including an
order made
under section 85(2), the attorney-general or, if a body or a person
other than the attorney-general or his representative,
was the
prosecutor in the proceedings, then such other prosecutor may require
the judicial officer concerned to state a case for
the consideration
of the provincial or local division having jurisdiction, setting
forth the question of law and his decision thereon
and, if evidence
has been heard, his findings of fact, in so far as they are material
to the question of law.
(2)
When such case has been stated, the attorney-general or other
prosecutor, as the case may be, may appeal from the decision to
the
provincial or local division having jurisdiction
.”
[4]
It is trite that it is not for the DPP to state the question of law
which the Court of appeal is to consider; but that the question
of
law must be set forth in the case stated by the magistrate. It is
necessary to restate the law in this regard. The procedure
required
to be followed by sub-sections (1) and (2) of s310 is clearly
circumscribed, it is for the magistrate, upon the application
of the
DPP,
‘
to
state a case for the consideration of the Court of appeal, setting
forth the question of law and his decision thereon, and, if
evidence
has been heard, his findings of fact, in so far as they are material
to the question of law’
(see
S
v Saib
[1]
).
However, for practical purposes, it is not improper for the DPP in
his Notice in terms of s310 (1) to suggest how the question(s)
of law
should be framed. It is however, ultimately, the magistrate who must
decide upon those questions of law which requires the
application of
his or her mind to the relevant facts and to frame the questions
accordingly.
[5]
In
S
v Petro Louise Enterprises (Pty) Ltd and others
[2]
Botha J aptly stated the position regarding s310 notices as follows:
“
It
is important that magistrates who are requested to state a case in
terms of sec. 104 (1) (now s 310 of Act 51 of 1977) and Rule
67
should take great care in complying with the requirements of those
provisions, especially in relation to the recital of the
facts found
and the formulation of the question of law involved. Lack of clarity
and precision in drafting a stated case can very
often lead to
confusion as to the actual issues at stake and cause unnecessary
trouble and inconvenience to the Court of appeal”.
[6]
The salient facts, to the extent relevant, regarding this matter are
as follows: A member of the South African Police Service,
Superintendent Kemp, attended at the Johannesburg Magistrate’s
Court on the strength of a suspicion, to obtain search warrants
from
the magistrate in terms of the relevant provisions of the CPA in
respect of the respondent’s residential address, as
well as the
respondent’s safety deposit boxes held at Nedbank, Eastgate.
[7]
In support of his application, not only was he in possession of his
own affidavit, but also that of an informer. But since the
given
addresses fell outside the magisterial district of Johannesburg, he
was referred to the Germiston Magistrate’s Court
for
authorisation of the warrants (exhibits “F” and “G”).
Both search warrants are worded the same. The
material parts thereof
read as follows:
“
SEARCH
WARRANT
[Sections
20, 21 and 25 Criminal Procedure Act, 1977 (Act 51 of 1977)
TO
THE TASK TO COMMANDER: SUPT JA KEMP: ORGANISED CRIME HEAD OFFICE
PRETORIA: S.A POLICE SERVICES: GNL PIET JOUBERT BUILDING SECOND
FLOOR: 218 VISAGIE STR PRETORIA.
(Complete
I or II)
WHEREAS
IT APPEARS TO ME FROM INFORMATION UNDER OATH THAT THERE ARE
REASONABLE GROUNDS TO BELIEVE THAT, WITHIN THE MAGISTERIAL DISTRICT
OF JOHANNESBURG THERE IS AN ARTICLE TO WIT
DIAMONDS,
JEWELLERY, COLLECTOR GOLD COINS, TANZANITE, AS PER ATTACHED LISTS
ACROSS RESPECTFULLY STOLEN FROM UNITY DIAMONDS, ORO
AFRICA, S A COIN,
ERICSON DIAMONDS, ROLEX WATCH COMPANY AND THAT COULD BE HIDDEN
ON THE PREMISES OF 9 BOWLING ROAD
BEDFORDRVIEW AS WELL AS UNDER
THE FLOOR PANELS OF A COTTAGE ON THE SAID PREMISES”.
[8]
S25 (1) of the CPA to the extent relevant reads as follows:
“
(1)
If it appears to a magistrate or justice from information on oath
that there are reasonable grounds for believing
(a)
. . . . . . . . . . . . .
(b)
that an offence has been or is being or is likely to be committed or
that preparations or arrangements for the commission of
any offence
are being or are likely to be made in or upon any premises within his
area of jurisdiction, he may issue a warrant
authorising a police
official to enter the premises in question at any reasonable time for
the purpose
(i)
. . . . . . . . . . . . .
(ii)
of searching the premises or any person in or upon the premises for
any article referred to in section 20 which such police
official on
reasonable grounds suspects to be in or upon or at the premises or
upon such person; and
(iii)
of seizing any such article.”
Each
of the warrants, however, states, above the signature of the
magistrate, the names of the respondent and the details of the
respective addresses (except for the words Germiston instead of
Johannesburg) where the warrants were to be executed as well as
the
items detailed above, which required to be seized. Significantly,
however, the warrants bore date stamps, indicating the office
of
issue (Germiston Magistrate), as well as the signature of the issuing
magistrate.
[9]
In a trial within a trial, the respondent subjected the validity of
these warrants to multi-faceted challenges, chief amongst
which was
that the search warrants also reflected the magisterial district of
Johannesburg instead of Germiston. The magistrate,
Germiston,
testified that it was nothing more than an error for having omitted
to delete the words “Johannesburg” where
it appeared on
both warrants. She was, however, satisfied that the given address
fell within the magisterial district of Germiston.
As there was
clearly a reasonable suspicion as envisaged under the relevant
provisions of the CPA, she granted the search and seizure
warrants.
[10]
It is common cause that as a result of the warrants, items seized
formed the basis of the charges proffered by the appellant.
The trial
court was, however, not satisfied that the warrants were properly
issued and in the result, refused to admit the evidence
obtained from
the impugned warrants. An application to review the magistrate’s
decision before the trial was concluded in
that regard was dismissed
by Claassen J, also on the basis that it is “
only in very
exceptional circumstances should a High Court review a lower court’s
decision prior to the completion of the
trial
”. At the
close of the state’s case, the respondent also closed his case
without leading any evidence. Consequently,
he was acquitted in
respect of all the charges.
[11]
The appellant was aggrieved by this acquittal. In the notice to the
magistrate by the DPP referred to above in paragraph 2
of this
judgment, of particular relevance in my view was the question that
was phrased thus:
Question
1: was trial court not bound by the judgement of
S
v Dos Santos
[3]
?
In
Dos Santos
, the search and seizure warrant had suffered the
technical defect that the regional magistrate who had issued it was
not a magistrate
as defined for the purposes of s 21 of the CPA. It
was held on appeal, that to exclude the evidence simply because the
wrong magistrate
had inadvertently been approached would not
conducive to a fair trial; and would not serve to advance the
administration of justice.
On the contrary, it would run counter to
the spirit and purport of the Constitution. Accordingly, the SCA
found that the trial
court's decision to admit the evidence could not
be faulted.
[12]
The magistrate dealt with aspects of jurisdiction in the Second
Stated Case (paginated page 999). He was of the view that the
search
and seizure warrants (exhibits F& G) “
conferred
authority and jurisdiction to the magistrate of Johannesburg”
.
Therefore, the magistrate who issued the warrants “
acted
outside the scope of exhibits F & G… without both
authority and jurisdiction
”. The
argument whether the magistrate who issued the warrants acted within
the ambit or scope of authority can be disposed
of shortly as there
is no merit in this argument. The respondent correctly conceded this
issue in submissions before us.
[13]
To my mind therefore, the question whether a magistrate acts with
authority and jurisdiction is a question of law. Magistrates
perform
their duties by authority of the enabling legislations, the
Magistrates Act 90 of 1993 (appointments) read in conjunction
with
Magistrates’ Courts Act 32 of 1944
, which confer jurisdiction.
Regarding the powers of judicial officers in the magistrates’
court,
s12
(1) (b) of the
Magistrates’ Courts Act provides
that
a magistrate:
“
shall
possess the powers and perform the duties conferred or imposed upon
the magistrates by any law for the time being in force
within the
province
wherein his district is
situate;”
The
overall purpose of a warrant issued in criminal proceedings is thus
to find and seize evidence of a commission of a crime which
may be
preserved for use should a prosecution follow. This, as Mogoeng J
(and as then was) stated in
Minister
of Safety and Security v Van der Merwe
[4]
,
is an important weapon
‘
designed
to help the police to carry out efficiently their constitutional
mandate of, amongst others, preventing, combating and
investigating
crime’.[at para 35]
[14]
The decision to issue a warrant is in no sense adjudication of any
substantive issue, existing or potential, between the State
and the
respondent. Therefore, in obtaining the search and seizure warrants,
and successes in the executions that followed, it
brought the state
no more than provisional physical possession of the relevant assets.
[15]
In my view, the magistrate had no basis to find that the magistrate
who issued both warrants acted without authority and jurisdiction.
The trial court magistrate therefore, committed, under the
circumstances, an irregularity or mistake of a serious nature in the
proceedings, which is not capable of being corrected. In terms of
s
35
(3) of our Constitution, every accused person has a right to a
fair trial, which includes the right-
“
(h)
to be presumed innocent, to remain silent, and not to testify during
the proceedings.”
In
this matter, we were urged to substitute the finding of the trial
court for a verdict of guilty based on the facts found proved
by the
trial court. In my view to do so, will manifestly be unjust and
unfair to the respondent and shall certainly be in conflict
with his
rights to a fair trial. The respondent had no obligation to
testify and implicate himself with regard to the alleged
offending
objects or assets subject to the criminal investigations.
[16]
The error committed by the trial magistrate in refusing to admit the
evidence on the basis that that the magistrate acted without
authority, is in my respectful view, not only of such serious
magnitude that it was unfair to the appellant (State) but, cannot
be
cured as it affected the fundamental fairness of the entire
trial. As it was put in
S
v Jaipal
[5]
:
'The
right of an accused to a fair trial requires fairness to the accused,
as well as fairness to the public as represented by the
State. It has
to instil confidence in the criminal justice system with the public,
including those close to the accused, as well
as those distressed by
the audacity and horror of crime.'
[17]
Accordingly, the appeal by the DPP succeeds and the matter will have
to be reopened after sufficient notice to the accused
(see s 310(4)).
In view, however, of the completely untenable finding of credibility
by the trial magistrate, there is no assurance
that a fair trial will
take place if the same magistrate presides at the resumed trial. The
trial before the trial court is declared
a mistrial. Therefore, in
terms of the powers conferred upon us by s 310(5), it is my view that
it should be ordered that the reopened
trial commence
de
novo
before another magistrate.
[18]
In the result the following order is made:
1.
The appeal is upheld.
2.
The order of the court below is set aside and the trial is to start
de novo
before
another magistrate.
TP
MUDAU
JUDGE
OF THE HIGH COURT
I
agree
T
V RATSHIBVUMO
ACTING
JUDGE OF THE HIGH COURT
Date
of Hearing: 18 April 2016
Date
of Judgment: 6 May 2016
For
the Appellant:
Adv. JG Wasserman
Instructed
by: Director of Public Prosecutions, Johannesburg
For
the Respondent:
Adv. M Hellens (SC)
Instructed
by: BDK Attorneys
[1]
S
v Saib 1975 (3) SA 994 (N) at 995F-H
.
[2]
S
v Petro Louise Enterprises (Pty) Ltd and others
1978 (1) SA 271 (T) at 276C.
[3]
S
v Dos Santos
2010 (2) SACR 382 (SCA).
[4]
Minister
of Safety and Security v Van der Merwe
2011
(2) SACR 301 (CC).
[5]
S
v Jaipal
[2005] ZACC 1
;
2005 (1) SACR 215
(CC) at para 29.