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[2023] ZAKZPHC 108
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Director of Public Prosecutions KwaZulu-Natal v Mzanywa and Another (AR374/2022) [2023] ZAKZPHC 108 (13 October 2023)
IN
THE HIGH COURT OF SOUTH AFRICA
KWAZULU-NATAL
DIVISION, PIETERMARITZBURG
Case
number:
AR374/2022
In
the matter between:
THE
DIRECTOR OF PUBLIC PROSECUTIONS
APPLICANT
KWAZULU-NATAL
and
MR
MZANYWA
FIRST RESPONDENT
ACTING
ADDITIONAL MAGISTRATE
PORT
SHEPSTONE
SBONGISENI
COSMOS SOSIBO
SECOND RESPONDENT
In
the matter of an application for the review of a ruling made by the
First Respondent in the criminal proceedings in the Magistrate’s
court, Port Shepstone under case no: VB1155/2021
Coram
:
Mossop J and E Bezuidenhout J
Heard
:
13 October 2023
Delivered
:
13 October 2023
ORDER
On
review from:
Port Shepstone Magistrates’ Court (sitting as
the court of first instance):
1.
The review application is dismissed.
JUDGMENT
Mossop
J (E Bezuidenhout J concurring)
:
[1]
The matter before us purports to be a
review of criminal proceedings that were conducted in the Port
Shepstone Magistrates’
Court. In those proceedings, the first
respondent was the presiding magistrate and the second respondent was
the accused.
[2]
In those proceedings, the second respondent
was charged with the offence of culpable homicide, it being alleged
that he wrongfully
and negligently caused a collision on the Izotsha
Road near Shelley Beach, between the motor vehicle that he was
driving and a
motorcycle being driven by Mr Wolfgang Schwarz (the
deceased). As a consequence of the collision, the deceased passed
away. After
a trial was conducted and evidence was led by the State,
the second respondent was acquitted on 30 June 2022.
[3]
As a consequence, the State, five months
later, brought the review application that now serves before us. The
relief claimed is
the following:
‘
(a)
That the order made by the first respondent in the Port Shepstone
Magistrates Court under case
no B1155/2021 on 30 June 2022 of finding
the Second Respondent not guilty and discharged on a charge of
Culpable Homicide and its
alternative, reckless or negligent driving
be and is reviewed and set aside.
(b)
That this Honourable Court finds that the First respondent (sic)
committed a gross irregularity
and misdirection when acquitting the
Second Respondent.
(c)
That the trial (sic) start
de novo
before another magistrate.
(d)
Ordering the Respondent/s that oppose/s this application to pay the
costs of the application
jointly or severally.
(e)
Further and or alternative relief, and that the accompanying
affidavit of Muziwodumo Miza
will be used in support thereof.’
[4]
Mr Muziwodumo Miza (Mr Miza) is the public
prosecutor who appeared for the applicant and who prosecuted the
second respondent. He
is the same person who deposed to the founding
affidavit in these review proceedings. He is also the person who drew
the applicant’s
heads of argument. Thankfully, despite his name
appearing on the heads of argument, he is not the counsel who
appeared before us
to argue the matter, as it is obviously totally
undesirable that counsel should personally argue a matter in which he
or she has
deposed to the founding affidavit.
That
is because:
‘…
if
he is a witness he compromises his capacity to give the conduct of
the case his objective professional attention.’
[1]
[5]
In his founding affidavit, Mr Miza states
that the first respondent erred in acquitting the second respondent
and states that:
‘
As
such, I now make an application for the review of the ruling made by
the First Respondent acquitting the Second Respondent.’
[6]
The aim of the review application is
therefore to set aside the acquittal of the second respondent. Mr
Miza goes on to set out what
he considers to be the facts of the
matter and then indicates that after the State had closed its case,
the second respondent sought
a discharge in terms of the provisions
of section 174 of the Criminal Procedure Act 51 of 1977 (the Act),
which was refused by
the first respondent. The second respondent then
immediately closed his case without testifying or calling any
witnesses and was
duly acquitted.
[7]
In his founding affidavit, Mr Miza quoted
from the judgment of the first respondent as follows:
‘
But
the standard practice is that in an accident a report is compiled,
accompanied by a sketch plan that would show the position
of the
various vehicles and persons affected by that accident. Some cases
even need some photos to support the evidence. Even in
the inspection
in loco, the evidence of the state witnesses was not backed up by any
drawings. This deficit has left the court
with a doubt as to how many
vehicles were involved in this accident. Was the vehicle of the
accused the only vehicle to have been
involved in that accident, or
the vehicle of the accused hit by another vehicle and during that the
vehicle of the accused hit
the motorcycle from the back so as to
cause the subsequent death of the deceased. If the court has any
doubt, the accused stands
to benefit. The accused is, in the
circumstances, found not guilty and discharged.’
[8]
That, essentially, is where the founding
affidavit ends and constitutes the high water mark of the grounds for
the review application.
[9]
From the aforegoing, it is plain that Mr
Miza is dissatisfied with the finding of the first respondent. He
believes that the second
respondent ought to have been convicted on
the evidence led. While the notice of motion alleges that the first
respondent committed
a gross irregularity and misdirection when
acquitting the second respondent, what that gross irregularity was,
is not identified
at all. No irregularities in procedure are
identified in the founding affidavit. The complaint of the applicant
appears to
arise solely from the judgment of the first respondent and
the decision to which he came.
[10]
As
a general proposition, dissatisfaction with a decision does not found
a review but an appeal.
The
distinction between an appeal and review was set out in
Tikly
and others v Johannes NO and others.
[2]
The court in that matter described an appeal as existing either in
the wide or the narrow sense. An appeal in the wide sense involves
a
complete re-hearing and a fresh determination on the merits, with or
without additional evidence. An appeal in the strict sense
involves a
re-hearing on the merits which is limited to the evidence on which
the decision under appeal was given and ‘the
only determination
is whether that decision was right or wrong’. A review, on the
other hand, is not intended to determine
whether the decision was
correct or not, but whether the decision maker exercised his or her
‘powers and discretion honestly
and properly’.
[3]
It
accordingly follows that a review is not intended ‘at
correcting a decision on the merits’ but ‘is aimed at
the
maintenance of legality’.
[4]
[11]
As
a rule of thumb, therefore, a review considers whether a decision is
lawful, whereas an appeal is concerned with whether it is
correct.
[5]
A review is ultimately concerned with process and regularity, and
this is determined by the record and the reasons given.
[6]
[12]
The
decision taken by the first respondent is accordingly not reviewable
in the absence of any identified irregularity. I am aware
of the
judgment of Levinsohn DJP in
DPP
KwaZulu-Natal v The Regional Magistrate, Vryheid
,
[7]
in which he permitted the review of an acquittal that had been
granted in the regional court. In my view, that matter is
distinguishable
from the facts of this matter. Unlike in this matter,
there were grounds upon which a review could be considered. The
learned judge
identified them as follows:
‘
Firstly,
the magistrate’s decision to release Sithole from undergoing
any further cross-examination. Secondly, to expunge
this uncompleted
testimony and thirdly to constructively close the State case.’
There
are no such grounds identified by the State in this matter. The
ground of review is the decision itself.
[13]
While
I have indicated that an appeal is the appropriate way to challenge a
decision in a criminal matter in the absence of procedural
irregularities, I do not wish to be understood as saying that is what
the State ought to have done in this matter or that it has
prospects
of success if it does so. In my view, the decision of the first
respondent is also not appealable. In our law, the policy
has
traditionally been that an acquittal of an accused person by a
competent criminal court is regarded as final.
If
an accused is found not guilty, for example, because of a deficiency
in the evidence led by the State, he or she should not be
harassed by
a second prosecution.
[8]
In
Magmoed
v Janse van Rensburg
,
[9]
the Supreme Court of Appeal indicated that it was concerned by the
prospect of an accused person should not be placed in jeopardy
of a
conviction more than once. The interests of justice proclaim that
there should be finality in criminal proceedings.
[14]
Presently,
the State only has a right of appeal in a criminal matter on an issue
of law where there has been an acquittal in a lower
court.
[10]
The
concept of a ‘question of law’ is generally interpreted
narrowly. In
Magmoed
,
[11]
the Supreme Court of Appeal confirmed this narrow approach and
cautioned that a broad interpretation of this concept:
‘…
would be opening the door
to appeals by the prosecution against acquittals, contrary to the
traditional policy and practice of our
law
.’
[12]
The
Supreme Court of Appeal held further that the reasonableness of an
acquittal based upon the strength of the evidence led at
a trial is
not a proper basis for an appeal by the State, as the reasonableness
of a verdict of not guilty inherently amounts to
a question of fact.
This is because such a verdict deals with the question of whether a
factual foundation exists for the application
of a legal rule.
[13]
[15]
It therefore appears that while the
decision taken by the second respondent is not reviewable, it is also
not appealable in the
hands of the State.
[16]
For these reasons, I
would propose that the review application be dismissed.
MOSSOP
J
I
agree:
E
BEZUIDENHOUT J
APPEARANCES
Counsel
for the applicant:
Mr R
du Preez
Instructed
by:
Director
of Public Prosecutions
Durban
Counsel
for the first respondent:
No
appearance
Counsel
for the second respondent:
No
appearance
Date
of argument:
13
October 2023
Date
of Judgment:
13
October 2023
[1]
Beyleveld
v Patel NO and others
[2006]
ZAECHC 66 para
16.
[2]
Tikly
and others v Johannes NO and others
1963 (2) SA 588 (T).
[3]
Ibid
at
590F-591A.
See also
Cell
C (Pty) Ltd v Commissioner, South African Revenue Service
2022 (4) SA 183
(GP)
para
9.
[4]
Pretoria
Portland Cement Co Ltd and another v Competition Commission and
others
2003 (2) SA 385
(SCA) para 35.
[5]
Liberty
Life Association of Africa v Kachelhoffer NO and others
2001 (3) SA 1094
(C) at 1111A.
[6]
Cell
C (Pty) Ltd v Commissioner, South African Revenue Service
2022 (4) SA 183
(GP)
para
9.
[7]
Director
of Public Prosecutions, Kwazulu-Natal v Regional Magistrate, Vryheid
and Others
(AR 397/2007) [2009] ZAKZPHC 10 (24 March 2009).
[8]
S
v
Makopu
1989
(2) SA 577
(E). On the issue of double jeopardy see also Jordaan:
‘
Appeal
by the prosecution and the right of the accused to be protected
against double jeopardy: a comparative perspective
’
XXXII CILA 1999.
[9]
Magmoed
v Janse van Rensburg and others
1993
(1) SACR 67 (A).
[10]
Section 310(1) of the Act.
[11]
Magmoed
v Janse van Rensburg and others
1993
(1) SACR 67 (A).
[12]
Ibid at 101H.
[13]
Ibid at 96G-I. See also
Jordaan:
‘
Appeal
by the prosecution and the right of the accused to be protected
against double jeopardy: a comparative perspective
’
XXXII CILA 1999 page 11.