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[2017] ZAGPJHC 119
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Director of Public Prosecutions Gauteng Local Division, Johannesburg v Regional Magistrate, Krugersdorp and Another (2016/20222) [2017] ZAGPJHC 119; 2018 (1) SACR 93 (GJ) (16 May 2017)
IN
THE HIGH COURT OF SOUTH AFRICA
GAUTENG
LOCAL DIVISION, JOHANNESBURG
CASE
NUMBER: 2016/20222
Reportable
Of
interest to other judges
Revised.
In
the review application of:
THE
DIRECTOR OF PUBLIC PROSECUTIONS
GAUTENG
LOCAL DIVISION,
JOHANNESBURG
Applicant
and
THE
REGIONAL MAGISTRATE,
KRUGERSDORP First
Respondent
UZENELIFA
DANIEL
FUKANDELA Second
Respondent
Coram:
MAKUME
ET WEPENER JJ
Heard:
11
May 2017
Delivered:
16 May
2017
Summary:
Review
pursuant to s 22(1)(c) of the Superior Courts Act. State entitled to
bring review of decision of a magistrate in the event
of a gross
irregularity in a trial. An unwarranted discharge of an accused
pursuant to s 174 of the Criminal Procedure Act may
constitute such
an irregularity.
JUDGMENT
WEPENER
J:
[1]
The applicant, the Director of Public Prosecutions (DPP), seeks to
review a decision of the first respondent, a regional magistrate,
which decision was to grant a discharge of the second respondent (the
accused) in a criminal case pursuant to the provisions of
s 174 of
the Criminal Procedure Act (CPA).
[1]
Despite earlier decisions allowing the DPP to appeal such a decision
of a magistrate
[2]
the
representative of the DPP did not rely on an appeal procedure by it
but on a review only. The DPP submitted and accepted that
a court’s
finding in an application for discharge at the end of the State’s
case in terms of s 174 of the CPA is an
interlocutory order and not
appealable. Although the refusal to grant a discharge may not be
appealable on this basis,
[3]
it
does not follow that the granting of a discharge is also of an
interlocutory nature. Whether this position is correct in law
need no
consideration as the DPP’s only lis with the accused is whether
the decision of the magistrate to grant the discharge
is reviewable.
[2]
The DPP relied upon the provisions of s 22(1)(
c
)
of the Superior Courts Act
[4]
which provides:
‘
The grounds upon which the
proceedings of any Magistrates’ Court may be brought under
review before a court of a Division
are -
(a)
. . .
(
b
) . . .
(
c
) gross irregularity in
the proceedings; and
(
d
) . . . .’
The
DPP submitted that the magistrate’s decision to discharge the
accused in terms of s 174 of the CPA resulted in procedural
and trial
related prejudice to the State and thus the trial was not in
accordance with justice.
‘
Fairness is not a one-way
street conferring an unlimited right on an accused to demand the most
favourable possible treatment but
also requires fairness to the
public as represented by the State. This does not mean that the
accused’s right should be subordinated
to the public’s
interest in the protection and suppression of crime; however, the
purpose of the fair trial provision is
not to make it impracticable
to conduct a prosecution.’
[5]
It
further submitted that the gross irregularity committed by the
magistrate renders the trial subject to a review. This court must
accordingly determine if the facts relied upon by the DPP indeed show
a gross irregularity to have been committed by the magistrate.
[3]
The facts, shortly, are that the accused was arraigned on a charge of
murder. He pleaded not guilty and did not tender a plea
explanation
in terms of s 115 of the CPA and exercised his right to remain
silent. He made certain admissions in terms of s 22
of the CPA
relating to the handling of the body of a deceased and the chain of
evidence relating thereto and admitted certain photographs
that were
taken of the body of the deceased. The magistrate accepted into
evidence the post mortem report, the chain statements
and the photo
album taken of the body of the deceased.
[4]
The State led evidence of a witness that he was in the company of the
deceased and the accused when they were drinking. There
was an
argument between the accused and the deceased over money owed from a
business that the deceased and the accused were involved
in. The
witness ordered them to leave his premises due to the noise which
they made and they left. The accused and the deceased
went to the
accused’s home across the street from where the witness stayed.
A short while later he observed the deceased
running out of the
accused’s home and falling to the ground. The deceased then
stood up whilst holding the left side of his
chest and continued
running. The accused followed the deceased with a knife in his hand.
The witness did not see the actual stabbing
of the deceased but
noticed later that evening that there was blood on the pavement where
the deceased fell. The witness ran towards
the deceased and the
accused and prevented the accused from pursuing the deceased. He then
asked the accused what happened and
the accused replied by saying
that the deceased was swearing at him. During cross-examination of
this witness the accused’s
legal representative put the
following version to the witness:
‘
Yes because the accused is
admitting that indeed, he chased the deceased with a knife, after he
had stabbed him. As I said, he was
defending himself. He chased him
out of the yard so that he could make sure that he was completely out
of his yard.’
[5]
A second witness testified that he did not see the stabbing but spoke
to the accused directly after the incident. The accused
was crying
and told him that he had stabbed the deceased but did not explain
why. It was common cause that a knife was taken from
the accused. The
State closed its case after leading this evidence and the accused
made an application for discharge in terms of
s 174 of the CPA, which
discharge was granted by the magistrate.
[6]
It is clear that the magistrate was called upon to exercise
discretion in considering whether to grant the discharge of the
accused. It is so, as the DPP argued, that the killing of another
human being is prima facie unlawful and the accused admitted
that he
was the person who caused the death of the deceased.
[7]
The submissions of the DPP in this regard cannot be faulted. In
S
v Manona,
[6]
Kruger AJ held:
‘
An assault and killing of a
human being is an action which is prima facie unlawful. Once it
becomes common cause that the accused
has assaulted or killed the
deceased or the victim in self-defence, an evidential burden is
placed on the accused to rebut the
prima facie presumption of
unlawfulness. In such cases a discharge under s 174 cannot be
granted.’
The
decision in
Manona
is also
in accordance with S v Ostilly:
[7]
‘
As will be seen, when I turn to
consider the facts, the evidence tendered by the State on disputed
issues is largely circumstantial.
With reference to such evidence,
one must consider at this stage whether a reasonable man might, not
should, draw the inference
sought to be drawn by the State. I
respectfully agree with the reasoning and observations in the recent
case of S. v Cooper and
Others,
1976 (2) SA 875
(T) at pp. 888 - 890,
on this question and with the concluding remark that:
"if there is more than one
inference possible from the facts assumed to be uncontradicted at the
close of the case for the
prosecution, then that is just the sort of
evidence that should be referred to the triers of fact for
decision."’
[8]
The question remains whether the magistrate in the exercise of his
discretion, even if he erred, committed a gross irregularity
in the
proceedings.
[8]
In
S
v Nabolisa
[9]
the Constitutional Court held:
‘
An irregularity is a wrongful
or irregular deviation from the formalities and rules of procedure
aimed at ensuring a fair trial.
In
S
v Jaipal
irregularities
were described as deviations from: “what one would regularly
expect in a properly conducted criminal trial”.’
In
S v
Bogaards,
[10]
Khampepe J, writing for the majority of the court, said:
‘
Ordinarily, sentencing is
within the discretion of the trial court. An appellate court’s
power to interfere with sentences
imposed by courts below is
circumscribed. It can only do so where there has been an irregularity
that results in a failure of justice;
the court below misdirected
itself to such an extent that its decision on sentence is vitiated;
or the sentence is so disproportionate
or shocking that no reasonable
court could have imposed it.’
The
question to be answered is therefore whether there was a failure of
justice or whether the court misdirected itself to such
an extent
that the decision on the discharge of the accused is vitiated.
[9]
A discretionary power must be exercised according to certain minimum
standards or judicially and not arbitrarily or capriciously.
In
Nathan
Bros v Pietermaritzburg Corporation
,
[11]
Finnmore J referred with approval to what was said by Lord Halsbury
in
Sharp
v Wakefield
:
[12]
‘“
Discretion” means
when it is said that something is to be done within the discretion of
the authorities that that something
is to be done according to the
rules of reason and justice not according to private opinion: . . .
according to law and not humour.
It is to be, not arbitrary, vague
and fanciful, but legal and regular.’
[10]
One such minimum standard which prescribes the exercise of a
discretion is that referred to in
Manona
. A failure to comply
with the rules results in a failure of justice and an unreasonable
order which is a gross irregularity in
the proceedings.
[11]
In my view, the facts of the case are such that no reasonable
presiding officer could have granted a discharge. The deviation
from
the norm is such that one would not have expected it in a properly
conducted criminal trial.
[13]
[12]
The magistrate incorrectly concludes in his reasons for judgment that
the State wanted the accused to give evidence in order
to incriminate
himself – something which the law will not countenance. The
legal representative for the accused aligned himself
with this
argument. But that is not the aim of the State. The aim is to allow
the accused the opportunity to discharge his evidential
burden
because without doing so, the only inference to be drawn from the
facts is that the accused unlawfully killed the deceased
[14]
and that he is guilty of murder. The giving of viva voce evidence by
the accused is not the only manner in which an accused can
discharge
the evidential burden and the argument on behalf of the accused and
the reasons furnished by the magistrate miss this
fact.
[13]
In these circumstances, the magistrate’s decision to discharge
the accused at the end of the State’s case contrary
to legal
precedent, was such an error of law that it constituted a gross
irregularity in the trial and it prejudiced the State
and should be
set aside.
[14]
‘
The requirement
that the previous acquittal must have been on the merits, or to put
it differently, that the accused must have been
in jeopardy of
conviction, means that, if the previous prosecution was vitiated by
irregularity, then it cannot found a plea of
autrefois
acquit
in a subsequent
prosecution. That is because the accused was not acquitted on the
merits and was never in jeopardy of conviction
because the
proceedings were vitiated by irregularity.’
[15]
This
results in the right of the State to charge the accused again and the
question of double jeopardy as stated in s 35(3)(m) of
the
Constitution does not arise.
[15]
The Superior Courts Act is silent regarding the court’s powers
when reviewing a decision under s 24. However, s 173 of
the
Constitution allows this court to protect and regulate its own
process and to develop the common law, taking into account the
interests of justice. The usual orders by courts when proceedings are
vitiated seek to allow for the same proceedings to be initiated
again
in the stead of the proceedings which have been set aside. Due to the
untenable finding of the magistrate it is my view that
the matter
cannot proceed before the same magistrate and the entire proceedings
should be set aside and the matter is to commence
de novo before
another magistrate.
[16]
In these circumstances, the following order is issued:
1. The decision of the
magistrate to discharge the accused in terms of
s 174
of the
Criminal
Procedure Act 51 of 1977
is set aside.
2. The proceedings before
the magistrate are set aside.
3. The trial is to
commence de novo before another magistrate.
______________
W
L Wepener
Judge
of the High Court
I
agree.
__________________
M
Makume
Judge
of the High Court
Counsel
for Applicant: N Muller
Attorney
for the Second Respondent: Mr P Mokoena
[1]
Act 51 of 1977.
[2]
Attorney General, Venda v Molepo
1992 (2) SACR 534 (V).
[3]
Ebrahim v Minister of Justice
2000 (2) SACR 173 (W).
[4]
10 of 2013.
[5]
Per Harms DP in
National Director of Public Prosecutions v
King
2010 (2) SACR 146
(SCA) para 5.
[6]
2001 (1) SACR 426
(Tk) at 427f-g.
[7]
1977 (2) SA 104
(D) at 107B-D.
[8]
Section 221(c) of the Superior Courts Act.
[9]
2013 (2) SACR 221
para 24.
[10]
2013 (1) SACR 1
(CC) para 41.
[11]
(1902) 23 NLR 108
at 128.
[12]
[1891] AC 173
at 179.
[13]
S v Jaipal
[2005] ZACC 1
;
2005 (1) SACR 215
(CC) para 44.
[14]
Manona
ibid.
[15]
S v Basson
2007 (1) SACR 566
(CC) para 255.