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[2021] ZAGPJHC 361
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National Director of Public Prosecutions v Hein N.O. and Others (A145/2017; ss31/2015) [2021] ZAGPJHC 361 (1 June 2021)
IN
THE HIGH COURT OF SOUTH AFRICA
GAUTENG
LOCAL DIVISION, JOHANNESBURG
REPORTABLE:
NO
OF
INTEREST TO OTHER JUDGES:
NO
REVISED:
Yes
Date:
01/06/21
APPEAL
CASE NO
:
A145/2017
COURT
A QUO
CASE NO
:
ss31/2015
DATE
:
22
nd
February 2021
In
the matter between:
NATIONAL
DIRECTOR OF PUBLIC PROSECUTIONS
Applicant
-
and -
LOUW
HEIN N.O. AND
OTHERS
Respondent
JUDGMENT
Khumalo
AJ and Mokgoatlheng J:
[1].
This is an application for the review and setting aside the ruling of
the First
Respondent Louw Hein in his capacity as the Regional Court
Magistrate to exclude the evidence of a certain Warrant Officer David
Xolile Mabena made on 31 October 2018 and to exclude downloads
extracted by the said Warrant Officer from the cellular phone of
the
sixth respondent as inadmissible.
[2].
Further, the Applicant seeks an order to review and set aside the
procedure
followed by the First Respondent from 29 to 31 October 2018
during the criminal trial of the second to the sixth respondents
under
case number RC1-110-2015 to either exclude and/or find as
inadmissible the evidence of Warrant Officer David Xolile Mabena
referred
to above.
[3].
Applicant further seeks an order directing the First Respondent to
permit the
Applicant to recall Warrant Officer David Xolile Mabena
for purposes of cross-examination, and to afford the further
respondents
to cross examine him, if they elect to do so and for the
State to re-exam him, if it elects to do so and to further direct the
First Respondent to either determine the admissibility of the
evidence of Warrant Officer Mabena at the end of the trial, or during
the application for a discharge in terms of
section 174
of the
Criminal Procedure Act, 51 of 1977
.
[4].
Applicant alleges that the ruling impugned contravenes the provisions
of
section 166
of the
Criminal Procedure Act, 51 of 1977
as amended
and is accordingly unlawful. It is further alleged that the exclusion
of W/O Mabena’s evidence and the ruling
that the extracts of
the downloads pertaining to the sixth respondent’s cellular
phone were inadmissible, were without any
factual and or legal basis
and in so doing the First Respondent violated the State’s right
to a fair trial.
[5].
The First Respondent presided over a criminal trial under case number
RC1/110/2015
and the deponent to the applicant’s founding
affidavit Ms. Erasmus prosecuted on behalf of the State.
[6].
On 31 October 2018, the First Respondent made the decision to exclude
evidence
relating to the downloads extracted by W/O Mabena from the
cellular phone of the sixth respondent. This application was
initiated
on 8 January 2020 which is approximately a period of 14
months after the ruling was made.
[7].
The primary question that arises in this
matter is whether it is appropriate for this court, at this stage, to
entertain a review
of a ruling made by a lower court in the course of
criminal proceedings that are yet to be finalised.
[8].
It is trite that as a general rule a High
Court will not by way of entertaining an application for review
interfere with incomplete
proceedings in a lower court. In
WAHLHAUS
AND OTHERS v ADDITIONAL MAGISTRATE, JOHANNESBURG AND ANOTHER
1959 (3) SA 113
(A) at 119G, it was stated that the High Court will
not ordinarily interfere whether by way of appeal or review before a
conviction
has taken place in the lower court even if the point
decided against the accused by a magistrate is fundamental to the
accused’s
guilt. At 119H-120A Ogilvie Thompson JA (as he then
was) stated as follows:
“
It is true that, by virtue of
its inherent power to restrain illegalities in inferior courts, the
Supreme Court may, in a proper
case, grant relief – by way of
review, interdict, or mandamus - against the decision of a
magistrate’s court given
before conviction.
This,
however, is a power which is to be sparingly exercised. It is
impracticable to attempt any precise definition of the ambit
of this
power; for each case must depend upon its own circumstances. The
learned authors of Gardiner and Lansdown (6th Ed.,
vol. I p.750)
state:
‘
While a
Superior Court having jurisdiction in review or appeal will be slower
to exercise any power, whether by mandamus or otherwise,
upon the
unterminated course of proceedings in a court below, it certainly has
the power to do so, and will do so in rare cases
where grave
injustice might otherwise result or where justice might not by other
means be attained … In general, however,
it will hesitate to
intervene, especially having regard to the effect of such a procedure
upon the continuity of proceedings in
the court below, and to the
fact that redress by means of review or appeal will ordinarily be
available.’
In my judgment, that statement
correctly reflects the position in relation to unconcluded criminal
proceedings in the magistrate’s
court.”
At 120D the learned Judge continued:
“
[T]he prejudice, inherent in an
accused’s being obliged to proceed to trial, and possible
conviction, before he is accorded
an opportunity of testing in the
Supreme Court the correctness of the magistrate’s decision
overruling a preliminary, and
perhaps a fundamental, contention
raised by the accused, does not per se necessarily justify the
Supreme Court in granting relief
before conviction. (See too the
observation of Murray J at pp 123 – 124 of
Ellis
case
supra
.)
As indicated earlier, each case falls to be decided on its own facts
and with due regard to the salutary general rule that appeals
(and I
might add, reviews) are not entertained piecemeal.”
[9].
In
ISMAIL AND
OTHERS v ADDITIONAL MAGISTRATE, WYNBERG AND ANOTHER
1963 (1) SA 1
(A) the following was stated at 5H-6A:
“
I should point out that it is
not every failure of justice which would amount to a gross
irregularity justifying interference before
conviction. As was
pointed out in
Wahlhaus and Others v Additional
Magistrate, Johannesburg and Another
1959
(3) SA 113
(AD) at p 119, where the error relied upon is no more than
a wrong decision, the practical effect of allowing an interlocutory
remedial procedure would be to bring the magistrate’s decision
under appeal at a stage when no appeal lies. Although there
is no
sharply defined distinction between illegalities which will be
restrained by review before conviction on the ground of gross
irregularity, on the one hand, and irregularities or errors which are
to be dealt with on appeal after conviction, on the other
hand, the
distinction is a real one and should be maintained. A Superior Court
should be slow to intervene in unterminated proceedings
in the court
below, and should, generally speaking, confine the exercise of its
powers to ‘rare cases where grave injustice
might otherwise
result or where justice might not by other means be attained.’
(Wahlhaus’s case, supra at p120).”
[10].
It has been stressed that underlying the
reluctance of the Courts to interfere in unterminated proceedings in
a lower court is the
undesirability of hearing appeals or reviews
piecemeal. See:
S v THE
ATTORNEY-GENERAL OF THE WESTERN CAPE
;
S v REGIONAL MAGISTRATE WYNBERG
AND ANOTHER
1999 (2) SACR 13
(C) at
22 e–f;
NOURSE v VAN HEERDEN
N.O. AND OTHERS
1999 (2) SACR 198
(W) AT 207 D-E; and
S v WESTERN AREAS
LTD AND OTHERS
supra
where, at 226B Howie P stated:
“
Long
experience has taught that in general it is in the interests of
justice that an appeal await the completion of a case whether
civil
or criminal. Resort to a higher Court during proceedings can result
in delay, fragmentation of the process, determination
of issues based
on an inadequate record and the expenditure of time and effort on
issues which may not have arisen had the process
been left to run its
ordinary course.”
[11].
All the above
dictum
apply similarly to an application brought
by the State where it seeks to review and set aside a decision of a
lower court before
the conclusion thereof as in this particular
matter.
[12].
Taking all the above
dictum
in matters of similar nature, the
question then is, is the case of the Applicant one of those rare
cases that this court’s
interference can be justified at this
stage of the unterminated proceedings and if it does not will result
in grave injustice.
[13].
A brief background is that the second to sixth respondents are
charged in the Regional Court
with one count of theft of crates of
ammunition, one count of contravening
section 31
(1) read with
sections 1
,
103
,
120
,
121
of the
Firearms Control Act 60 of 2000
, in
the alternative to count 1 and 2, contravening
section 13(1)
of the
National Conventional Arms Control Act 41 of 2002
and one count of
theft of bullet proof vests. The second to fourth respondents face an
additional charge of fraud.
[14].
The second and third respondents were members of the South African
National Defence force (“SANDF”).
The fourth defendant is
the son of the third respondent. Fifth Respondent was a co-owner of
Dave Sheer Gun shop and the Sixth Respondent
a manager at the gun
shop.
[15].
The events that led to the arrest of the second to the sixth
respondents’ arrest arose
between 2008 and 2013. The summary of
the allegations against them are that they stole and traded in
ammunition belonging to the
SANDF.
[16].
W/O Mabena of the Directorate of Priority Crimes Investigations
{“DPCI”) was apparently
tasked with performing downloads
from the cellular phone of the Sixth Respondent and on 12 September
2013, he deposed to a statement
in terms of section 213 of the
Criminal Procedure Act, 51 of 1977 (the “CPA”).
[17].
The investigating officer in the Criminal trial a W/O Ngwenya
apparently collected the
exhibit bags from the DPCI SAP 13 for safe
keeping at the military Police SANDF exhibit store. Neither W/O
Mabena’s statement
nor the downloads from the sixth
respondent’s cellular phone were initially filed in the docket
by W/O Ngwenya nor were the
documents provided as part of the docket
to all the respondents.
[18].
The trial of the second to sixth respondents commenced in November
2016 and they pleaded not
guilty to all the charges and tendered no
plea explanation.
[19].
The State alleges that around June/July 2017, some six months after
the commencement of the
trial, counsel for the sixth respondent
telephonically advised the Prosecutor that W/O Mabena performed the
downloads on the sixth
respondent’s cellular phone which
allegation was confirmed by W/O Ngwenya.
[20].
On 4 July 2017, Counsel for the sixth respondent argued that the
failure to provide downloads
and W/O Mabena’s statement
infringed his client’s right to a fair trial.
[21].
It was only during May 2018 that the fifth and sixth Respondents
legal representatives were
provided with the statement of W/O Mabena
and the extracts of the downloads that he was in possession of.
[22].
On 29 October 2018, W/O Mabena was called as a witness and the fifth
and sixth respondents objected
to his evidence being led and
contended that his evidence would render the trial unfair owing to
the delay in discovering the witness’s
statement and the
extracts of the downloads he performed.
[23].
After argument, first respondent permitted W/O Mabena to give
evidence in chief but refused
to accept into the record the extracts
of the sixth respondent’s downloads when the prosecutor
attempted to hand the document
in as part of W/O Mabena’s
testimony.
[24].
After completion of W/O Mabena’s evidence in chief, but before
cross-examination, first
respondent entertained further arguments
from the parties and found that the evidence of W/O Mabena and the
downloads will render
the trial of the second to the sixth
respondents unfair and excluded W/O Mabena’s evidence and made
the ruling that the document
containing the extracts of the downloads
was inadmissible.
[25].
The above are the decisions and or rulings that are being impugned in
these proceedings.
[26].
Applicant argues that first respondent’s the exclusion of
W/O Mabena’s evidence,
the failure to permit his cross
examination and the finding that the extracts of the downloads made
from the sixth respondent’s
cellular phone are inadmissible is
a gross irregularity which justifies this Court’s intervention
and submits that it is
one of those rare cases alluded to earlier
where grave injustice might otherwise result.
[27].
The review is premised on the provisions of
section 22
(c) and (d) of the
Superior Courts Act, 10 of 2013
:
“
Grounds for
review of proceedings of Magistrates’ Court
(1)
The grounds upon which the proceedings of
any Magistrates’ Court may be brought under review before a
court of a Division
are-
(a)
absence of jurisdiction on the part of the
court;
(b)
Interest in the cause, bias, malice or
corruption on the part of the presiding judicial officer;
(c)
Gross irregularity in the proceedings; and
(d)
The admission of inadmissible or
incompetent evidence or the rejection of admissible or competent
evidence.
(2)
This section does not affect the provisions
of any other law relating to the review of proceedings in
Magistrates’ Courts.”
[28].
The First, Firth and Sixth Respondents oppose the
application.
[29].
The issue before us as in Gounden and Another v
Noncebi NO 2018(2) SACR is rather crisp and is determinable on the
point of principle
articulated above. It is for the applicant to
justify the interference by this court in the trial continuing in the
lower court.
If it fails to do so, then it is not necessary to enter
into the merits of the ruling under challenge. Put differently, if
the
applicant does not meet the standard to demonstrate why the
review should be determined now, before the trial is concluded, that
is the end of the matter. If they do satisfy the prerequisites then
the court is to interrogate the exclusion of the evidence of
W/O
Mabena and the refusal to admit the documents of the extracts of the
downloads performed by him on the cellular phone of the
sixth
respondent.
[30].
The question that arises is what standard
must the applicants meet in order to overcome this first hurdle? At a
minimum, exceptional
circumstances must be shown before a high court
may interfere with a decision of the magistrate’s court given
before conviction
in accordance with this principle as it endured
over the course of time (see
Wahlaus &
Others v Additional Magistrate, Johannesburg & Another
1959 (3) SA 113
(A) at 119H-120B). In
Motata
v Nair NO & Another
2009 (1) SACR
206
(T) at 119, the test was narrowed down even further. It was held
in
Motata
that
it is only in ‘rare’ cases where grave injustice might
otherwise result or where justice might not by other means
be
obtained that the high court should exercise its inherent power to
interfere. It was explained that “… underlying
the
reluctance of the courts to interfere in unterminated proceedings in
a lower court is the undesirability of hearing appeals
or reviews
piecemeal”.
[31].
In essence the applicant has put
forward the reason as being an exceptional circumstance justifying a
review at this stage: namely
that thr evidence of W/O Mabena and the
extracts of the downloads he performed, which forms the subject
matter of this review application,
completes the chain of events in
the criminal case.
[32].
Further the Applicant alludes to the fact
that some of the respondents have intimated an intention to apply for
a discharge in terms
of
section 174
of the CPA when the State closes
its case, alternatively if the first respondent makes an order that
the State’s case is
deemed closed in terms of
section 342A
of
the CPA. Applicant argued that should the review be successful, but
after the respondents have applied for, and possibly being
granted a
discharge in terms of
section 174
of the CPA, then there would be a
serious miscarriage of justice as potentially guilty persons would
have been set free. The applicant
would have to utilise public funds
to follow the protected appeal process with the risk of witnesses
later becoming either unavailable
or losing interest in the matter.
[33].
I am not convinced that the above makes for
a case that this court should interfere. Firstly the case of the
applicant is not “rare”
and neither are the circumstances
in which the ruling was made. In the applicant’s own argument,
it certainly would be open
to appeal the final decision of the
magistrate or the First Respondent in this case. The fact that it
will have to utilize public
funds to follow a protected appeal
process with all the risks attached does not make this case rare or
unique and therefore deserving
of this court interference at this
stage. The criminal justice system, by its very nature is by and
large conducted with the utilization
of public funds. It is therefore
not a rare or special occurrence.
[34].
The applicants accordingly fail the test as
defined in
Motata
.
[35].
Accordingly, I am not persuaded that
this is a matter in which this court ought to invoke its inherent
power and engage in a review
of the ruling which the first respondent
made. It follows that this application must fail. This renders it
unnecessary for this
court to engage in the merits on the correctness
of the ruling.
[36].
In the light of the above, I am of the view
that this court need not deal with all the other issues raised
between the parties during
argument.
The
following order is therefore made:
a)
the application is dismissed;
b)
the applicant is directed to pay the fifth and sixth respondents’
costs.
KHUMALO MP
Acting Judge of the High Court of
South Africa
Gauteng
Local Division, Johannesburg
I
agree,
MOKGOATLHENG RATHA
Judge of the High Court of South
Africa