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2023
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[2023] ZAFSHC 356
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Sithole and Another v Director of Public Prosecutions and Others (3239/2021) [2023] ZAFSHC 356 (7 September 2023)
IN
THE HIGH COURT OF SOUTH AFRICA
FREE
STATE DIVISION, BLOEMFONTEIN
Case
no:
3239/2021
Reportable:
YES/NO
Of
Interest to other Judges: YES/NO
Circulate
to Magistrates: YES/NO
In
the matter between:
EDDIE
SITHOLE
ISAAC
VUYO MASHAVA
and
DIRECTOR
OF PUBLIC PROSECUTIONS
NATIONAL
DIRECTOR OF PUBLIC PROSECUTIONS
MAGISTRATE
– MR FURSTENBERG
First
Applicant
Second
Applicant
First
Respondent
Second
Respondent
Third
Respondent
CORAM:
DANISO, J
et
CRONJÉ, AJ
HEARD
ON:
27
JULY
2023
DELIVERED
ON:
07
SEPTEMBER 2023
JUDGMENT
BY:
PR
CRONJÉ, AJ
This
judgment was handed down electronically by circulation to the
parties’ representatives by email, and release to SAFLII.
The
date and time for hand-down is deemed to be 15h00 on 07 September
2023.
[1]
The Applicants apply for the review and setting aside of the decision
of Magistrate
Furstenberg of the District Court in Welkom (“
the
Magistrate
”) who ordered the Applicants to appear before
the Circuit High Court in Welkom. The Applicants abandoned a prayer
declaring
the substantial delay in their prosecution as a failure of
justice.
[2]
The Applicants are business persons who reside in Welkom. They were
arrested on 11
November 2014 and indicted with eleven (11) other
accused persons. Since their arrest they appeared numerous
times in the
District Court of Welkom. The Applicants lodged
several applications in the High Court and an appeal to the
Constitutional
Court to compel the State to provide further and
better particulars to the charges against them.
[3]
The Applicants brought an application in this Division
[1]
in 2018, requesting that they be tried in the Regional Court and not
the High Court. On 13 August 2018, Musi, JP
et
Loubser, J in this Court, reviewed and set aside the decision of the
Regional Court to transfer the case to the High Court. The
Court
ordered that the matter be remitted back to Regional Court in Welkom.
[4]
Pursuant to that judgment, the Regional Court found that the
Applicants and their
co-accused were unlawfully/improperly before
that Court and the matter was struck from the roll.
[5]
On 30 June 2021, the Applicants appeared before the Magistrate. The
prosecutor, representing
the First Respondent (DPP), requested that
the matter be transferred to the High Court.
[6]
Section 75 of the Criminal Procedure Act
[2]
(CPA) provides for the hierarchical chain of courts before which
accused persons shall appear:
“
(1)
When an accused is to be tried in a court in respect of an
offence, he shall, subject to the provisions of sections 119,
122A
and 123, be tried at a summary trial in—
(a)
a court which has jurisdiction
and in which he appeared for the first time in respect of such
offence in accordance with any method
referred to in section 38;
(b)
a court which has jurisdiction
and to which he was referred to under subsection (2); or
(c)
any
other court which has jurisdiction and which has been designated by
the attorneygeneral
[3]
or any person authorized thereto by the attorneygeneral, whether
in general or in any particular case, for the purposes of
such
summary trial.
2(a)
If an accused appears in a court which does not have jurisdiction to
try the case,
the accused shall
at the request of the
prosecutor
be referred to a court having jurisdiction
.
(b)
If
an accused appears in a magistrate’s court and
the
prosecutor informs the court that he or she is of the opinion that
the alleged offence is of such a nature or magnitude that
it merits
punishment
[4]
in
excess of the jurisdiction of a magistrate’s court
but
not of the jurisdiction of a regional court, the court
shall
if so requested by the prosecutor refer the accused to the
regional
court
for summary trial without the accused having to plead to the relevant
charge
.”
[my
emphasis]
[7]
The wording of a 75(2)(a) is clear. The accused must, at the request
of the prosecutor,
be referred either to the Regional or High Court.
[8]
Mr Langa, who appeared for the accused before the Magistrate, argued
that the matter
cannot be transferred to the High Court as the matter
was referred back to the Regional Court.
[5]
The Magistrate was referred to the order of Musi, JP. The prosecutor
submitted that the matter was enrolled in the District Court
to
transfer it to the High Court.
[9]
Mr Omar appeared before us and argued that the procedure was
unfair
[6]
and that the
Magistrate is bound by the High Court order. The principle of
stare
decisis
applies. In
Patmar
Explorations (Pty) Ltd v Limpopo Development Tribunal
[7]
the Supreme Court of Appeal stated it as follows:
“
[3]
… The basic principle is stare decisis, that is, the
Court stands by its previous decisions, subject to an exception
where
the earlier decision is held to be clearly wrong. A decision will be
held to have been clearly wrong where it has been arrived
at on some
fundamental departure from principle, or a manifest oversight or
misunderstanding, that is, there has been something
in the nature of
a palpable mistake. … Mere disagreement with the earlier
decision on the basis of a differing view of the
law by a court
differently constituted is not a ground for overruling it.”
[10]
The fact that the prosecuting authority and the Magistrate, did not
file any papers in respect
of the review application, does not in
itself mean that the application has to succeed.
[11]
In
Musi, JP’s judgment the matter was transferred from the
Regional Court, which had jurisdiction itself, to the High Court
to
try the matter. Therefore s 75(2)(a) did not apply as the section
refers to the District Court. The court also found that s
75(2)(b)
did not apply as, on the record, there was nothing which pointed to
the transfer having been done in terms of the imposition
of a
sentence.
[8]
It is simply on
those reasons that the Regional Magistrate’s decision to
transfer the matter was set aside. The principle
of
stare
decisis
does
not apply.
[12]
The
contention that by transferring the matter from the District Court to
the High Court the Magistrate is in breach of Musi JP’s
judgment, is therefore unsound. On the Applicants’ own
submission the matter was struck from the roll of the Regional Court
after the order of Musi, JP. The Applicants and the co-accused were
thereafter served with summons / warrants of arrest to appear
in the
District Court. An order striking off a matter from the roll
terminates the proceedings. The matter then has to start afresh
in
the District Court.
In
Thint
Holdings (Southern Africa) (Pty) Ltd and another v National Director
of Public Prosecutions; Zuma v National Director of Public
Prosecutions
[9]
it was held:
“
First,
once the original criminal case had been struck from the roll, the
trial ended and there was no certainty that it would be
reinstated;
so that Applicants were objectively not accused persons.”
[13]
T
he judgment of Musi, JP is
therefore of no assistance to the Applicants and
this court cannot interfere with the
transfer.
[14]
Mr Omar requested that the DPP pay the costs of the application.
Having
failed to convince this Court that the Magistrate was wrong, it would
only be fair that no order as to costs is made. The
First and Second
Respondents only gave notice of intention to oppose but did not file
opposing papers and did not appear before
us.
[15]
I would therefore make the following order:
ORDER
1.
The application to review and set-aside the order of Magistrate
Furstenburg is dismissed.
2.
There is no order as to costs.
P
R CRONJé, AJ
I
agree:
N
S DANISO, J
On
behalf of Applicants:
Zehir
Omar Attorneys
Horn
& Van Rensburg Attorneys
Bloemfontein
On
behalf of Respondents:
No
appearance
[1]
Reported under
Sithole
and Others v Director of Public Prosecutions and Another
(6146/2017)
[2018] ZAFSHC 34
(29 March 2018)
[2]
51 of 1977
[3]
Now the National Director of Public Prosecutions (NDPP) – the
Second Respondent in this application
[4]
In respect of sentencing the Regional Court would have jurisdiction
over the Applicants
[5]
Pleadings,
page 9, line 8 – page 5, line 1
[6]
The test is whether it is sanctioned by law or unprocedural
[7]
(1250/2016)
[2018] ZACC 19
(16 March 2018)
[8]
Record, p. 42, par [10]
[9]
2009
(3) BCLR 309
(CC)