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[2023] ZAFSHC 334
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D.T v Magistrate Bester and Others (3376/2022) [2023] ZAFSHC 334 (23 August 2023)
SAFLII
Note:
Certain
personal/private details of parties or witnesses have been
redacted from this document in compliance with the law
and
SAFLII
Policy
IN THE HIGH COURT
OF SOUTH AFRICA,
FREE STATE
DIVISION, BLOEMFONTEIN
Case number: 3376/2022
REPORTABLE: YES/NO
OF
INTEREST TO OTHER JUDGES: YES/NO
CIRCULATE TO MAGISTRATES:
YES/NO
In
the matter between:
D[…]
T[…]
Applicant
And
MAGISTRATE
P BESTER
1
st
Respondent
MINISTER
OF JUSTICE AND
2nd
Respondent
CORRECTIONAL
SERVICES
B[…]
M[…] T[…]
3
rd
Respondent
CORAM:
DANISO, J
et
,
CRONJE, AJ
HEARD
ON:
29 MAY 2023
JUDGMENT
BY:
DANISO,
J
DELIVERED
ON:
This
judgment was handed down electronically by circulation to the
parties' representatives by way of email and by release to SAFLII.
The date and time for hand-down is deemed to be on 23 August 2023 at
11h00.
[1]
On 23 September 2021 the first
respondent, a Bloemfontein district magistrate (“the
magistrate”) acquitted the third respondent on a charge of
perjury privately prosecuted by the applicant after the National
Director of Public Prosecutions had declined to prosecute.
[2]
At all material times hereto the applicant and the third respondent
were married to
each other though estranged and embroiled in
acrimonious divorce proceedings.
The
charge arose from an affidavit deposed to by the third respondent in
support of her Rule 43 of the Uniform Rules application
in which she
sought interim maintenance for herself and the parties’ minor
child pending the finalization of the divorce
proceedings.
[3]
According to the charge sheet, the third respondent was accused of
contravening the
provisions of section 9 of the Justice of Peace and
Commissioners of Oath Act
[1]
in that she:
“
intentionally,
wrongfully and unlawfully gave the following false statements under
oath in order to get Rule 43 order to her benefit,
by declaring the
following:
(a)
The complainant and herself built a R3 million house in
Pretoria cash;
(b)
Their marital home is not owing to the Bank;
(c)
The complainant bought his parents a vehicle;
(d)
Each house in Bloemfontein generates an income of
approximately R48 000.00;
(e)
R1500.00 monthly clothing for minor child;
(f)
The complainant removed their minor child from his medical
aid; and
(g)
She spends R1 250.00 on medical aid for the parties’
minor child.
[4]
At the trial, the applicant and the third respondent testified. No
other witnesses were called.
T
he
applicant’s case was essentially that the
third
respondent had lied under oath in her rule 43 affidavit (Exhibit “A”)
with the purpose of inflating the applicant’s
financial status
and income in order to secure high maintenance which the applicant
could ill afford. The third respondent denied
any malfeasance and
contended that there was nothing fraudulent or even misleading about
the evidence contained in her rule 43
affidavit. She stated that the
applicant’s financial details that she had alluded to were
merely estimates and they were
duly accepted by the high court with
the result that the relief she sought in that regard was granted.
[5]
After all the evidence was proffered, the magistrate delivered
an “
ex
tempore
judgment”
[2]
stating
the following:
“
COURT:
Madam, we have got two different versions
before court of what happened and at this stage the Court cannot
decide between the two
versions. And it is quite clear in law if the
Court cannot decide you must get the favour of the decision of the
Court. If this
Court at this stage finds that the case against you is
not proved beyond a reasonable doubt, then you are found not guilty
and
are discharged.”
[6]
The applicant is aggrieved by the magistrate’s decision to
acquit the third
respondent. On 02 June 2022 he filed a request for
reasons as provided for in section 310 (1) of the Criminal Procedure
Act (the
CPA)
[3]
in terms of
which the magistrate was requested to state a case for consideration
of this court setting out the question of law
on the basis of which
the third respondent was found not guilty. The magistrate was also
requested to provide his decision on that
question of law and the
findings of fact he made in that respect.
[7]
The magistrate’s written response was simply:
“
KINDLY TAKE
NOTE THAT I HAVE NOTING (SIC) TO ADD TO MY REASON GIVEN DURING MY
JUDGMENT.”
[8]
According to the applicant, the magistrate’s response falls
short of what is
required in section 310 of the CPA and it is in that
regard that he has instituted these reviews proceedings for an order:
“
1.
That the failure by the First Respondent to deliver a full and
reasoned judgment in the criminal
prosecution instituted by the
Applicant against the Third Respondent in the Bloemfontein
Magistrates’ Court under case number:
19/95A/2021, Be reviewed
and set aside;
2.
That the failure by the First Respondent to appropriately respond to
the request in terms
of section 310 of the criminal procedure Act 51
of 1977 served on him by the Applicant on 2 June 2022, be reviewed
and set aside;
3.
That the first respondent be
directed to appropriately respond to the applicant’s request
by:
3.1.
Setting out the questions of law on
which the First Respondent found in favour of the Third Respondent;
3.2.
Setting out the First Respondent’s
findings of fact in as far as they are material to the questions of
law on which he gave
a decision in favour of the Third Respondent;
and
3.3.
Setting out his decisions on such
questions of law and his reasons therefor.
4.
That the First and Second respondents be ordered to pay cost of this
application, jointly
and severally;
5.
That the Applicant be granted such further and/or alternative relief
as this Honourable
Court may deem fit.”
[9]
The application is unopposed as except to file a notice indicating
their intention
to oppose the order relating to costs, no opposing
papers (answering affidavits) have been filed by the respondents.
[10]
At the hearing of the matter
only the relief
sought in prayer 3 and 4 was pursued and on the basis that only the
second respondent should be mulcted with costs.
[11]
Section 310
of the CPA
must
be read with
Rule 67 (12) of the Magistrates’ court
rules. The relevant provisions provide thus:
"
Section
310
Appeal from lower court by prosecutor
(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."
[12]
Whereas, rule 67 (12) (a) and (b) pertains to the formalities
of the stated case namely that ‘
the stated case shall be
divided into paragraphs numbered consecutively and shall be arranged
in the following order:
(i)
The judicial officer’s findings of fact in so far as they are
material to the
questions of law on which decision in favour of the
appellant was given;
(ii)
questions of law; and
(iii)
the judicial officer’s decision on such questions and his or
her reasons therefor
.’
[13]
From the analysis of section 310(1) it is clear that one of the
jurisdictional requirements to be met by
the applicant in order to
require the magistrate to state a case for the consideration of this
court is that the decision
made in favour of the third
respondent was based on a question of law.
[14]
The determination of whether the magistrate’s decision was
based on a question of law involves
the examination of the judgment
which embodies the charge itself, the facts of the matter, the
totality of the evidence led, the
magistrate’s findings and the
reasons therefor.
[4]
In this
matter, except to flittingly state that
the
“
law”
enjoins
him to discharge the third respondent on the basis of the divergent
versions proffered by the parties regarding the circumstances
under
which the third respondent deposed to the rule 43 affidavit, the
magistrate did not render a judgment. It was stated in
Strategic
Liquor Services v Mvumbi NO
[5]
that:
“
It
is elementary that litigants are ordinarily entitled to reasons for a
judicial decision following upon a hearing, and, when a
judgment is
appealed, written reasons are indispensable. Failure to supply them
will usually be a grave lapse of duty, a breach
of litigants' rights,
and an impediment to the appeal process. A reasoned judgment may well
discourage an appeal by the loser.”
[15]
The magistrate’s failure to render a judgment is indeed a grave
lapse of duty. What compounds the situation
is the magistrate’s
refusal to provide reasons when he was subsequently requested to do
so. In my view, the magistrate’s
conduct is what is aptly
described as “poor judicial service” in
Strategic
Liquor Services
supra.
[16]
Factual disputes are resolved by making findings on: the
probabilities, the strength and weaknesses of both
the state and the
defence versions, the credibility of the factual witnesses and
whether the party burdened with the onus of proof
has succeeded in
discharging it.
[6]
The
question of whether the magistrate correctly applied this principle
correctly to arrive at the conclusion that the applicant
failed to
prove the third applicant’s guilt beyond a reasonable doubt is
a question of law.
[17]
For the above-mentioned reasons, I am satisfied that the applicant
has made out case for the relief he seeks. The application
succeeds
and
there is no reason why the costs should not follow the
results.
[18] In the
circumstances, the following order is issued.
1.
The first respondent is ordered to
appropriately respond to the applicant’s application in terms
of section 310(1) of the
Criminal Procedure Act, 51 of 1997 by
setting out;
1.1.
the questions of law on which he found in
favour of the third Respondent;
1.2.
his findings of fact in as far as they are
material to the questions of law on which he gave the decision in
favour of the third
Respondent; and
1.3.
his decision on such questions of law
including the reasons therefor.
2.
The second respondent shall pay the costs
of this application.
N.S. DANISO, J
I
agree, it is so ordered
P.R.
CRONJE, AJ
APPEARANCES:
Counsel
on behalf of Applicant:
Adv.
M.S Mazibuko
Instructed
by:
Mazibuko
& Wesi INC.
BLOEMFONTEIN
[1]
Act
No,
16 of 1963.
[2]
Record
page 207, lines 11 to 18.
[3]
Act
No, 51 of 1977.
[4]
S
v Nzimande
2010
(2) SACR 517
SCA.
[5]
2010
(2) SA 92
(CC)
at 96 para
15.
[6]
S
tellenbosch
Farmers’ Winery Group Ltd
&
Another v Martell Et Cie & Others
2003
(1) SA 11
SCA
at para 5.