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[2023] ZAECMKHC 117
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Van der Walt and Another v Director of Public Prosecutions and Another - On Review (1176/2023) [2023] ZAECMKHC 117 (12 October 2023)
SAFLII
Note:
Certain
personal/private details of parties or witnesses have been
redacted from this document in compliance with the law
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Policy
IN
THE HIGH COURT OF SOUTH AFRICA
EASTERN
CAPE DIVISION, MAKHANDA
CASE
NO. 1176/2023
In
the matter between:
MARYKE
VAN DER WALT
FIRST
APPLICANT
SAREL
VAN DER WALT
SECOND
APPLICANT
and
THE
DIRECTOR OF PUBLIC
PROSECUTIONS
FIRST
RESPONDENT
THE
MAGISTRATE EASTERN CAPE
REGIONAL
COURT SPECIALISED
COMMERCIAL
CRIMES COURT
SECOND
RESPONDENT
JUDGMENT
ON REVIEW
Rugunanan
J
[1]
During 2017 the applicants appeared in the
Regional Commercial Crimes Court, Port Elizabeth (now Gqeberha) in
Case number CCC1/88/2013
on various counts relating to fraud and
contraventions of the Income Tax Act 58 of 1962 and the
Tax
Administration Act 28 of 2011
.
[2]
The applicants were legally represented at the
time.
[3]
In accordance with
section 85
of the
Criminal
Procedure Act 51 of 1977
they objected to the charges against them.
On 27 November 2017 the presiding magistrate dismissed the
applicants’ objection.
[4]
Extrapolated from a notice of motion comprising of
six pages is that the applicants now approach this court seeking:
(a)
a review and
setting aside of the magistrate’s judgment/order; and
(b)
a permanent stay
of the prosecution against them.
[5]
It is at the outset necessary to state that the
applicants offer no detail of the number of counts included in the
charge sheet
neither have they attached a copy of the charge sheet
against which they persist in raising objections. This Court is
unable to
determine whether their objections related to:
(a)
Non-compliance
or failure to disclose the essentials of the charge;
(b)
Failure of the
charges to disclose an offence;
(c)
Failure to set
out an essential element of a specific offence; or
(d)
Failure to set
out sufficient particulars of any matter alleged in the charge/s.
[6]
The applicants’ complaint throughout their
founding papers is that the charges against them are prejudicial.
Their complaint
can only be meaningfully evaluated if the
aforementioned detail is put up and assessed against the contents of
the charge sheet
and the magistrate’s findings. Where this
information is not forthcoming and the charge sheet unavailable, the
task which
this Court is expected to undertake is rendered
impossible.
[7]
The ostensible basis on which the applicants seek
relief is in terms of the Promotion of Administrative Justice Act 3
of 2000 (the
PAJA). To this end they also seek an order that the
period of 180 days envisaged by section 7(1) of the PAJA be extended
to the
date of the launch of the present application.
[8]
In the alternative reliance is placed on
sections
21
and
22
of the
Superior Courts Act 10 of 2013
.
[9]
The review proceedings were instituted on 14 April
2023.
[10]
The first respondent and second respondents
respectively are the Director of Public Prosecutions, and the
presiding magistrate.
[11]
Neither of the respondents opposed the
proceedings.
[12]
The matter accordingly proceeded unopposed –
each of the applicants representing themselves.
[13]
In a letter dated 24 April 2023 directed to the
registrar of this Court, the senior prosecutor of the Specialised
Commercial Crime
Unit conveys the following:
‘
I
further draw to your attention the following facts, the upshot of
which is that all the prayers listed in the application are
moot.
The criminal trial
commenced on 20 April 2023 and both applicants pleaded not guilty to
all charges. The State commenced the leading
of evidence and the
matter was remanded to 16 October 2023 for continuation of trial.’
[14]
The review proceedings served before this Court on
10 October 2023.
[15]
Before proceeding to deal with the relief sought
by the applicants it is perhaps convenient to say something about
their reliance
on
section 21
of the
Superior Courts Act.
[16
]
Pared down to its minimum – and purely for
the sake of giving context to the present matter – subsection
(1) basically
provides that a division of the High Court has
jurisdiction over all persons and all offences triable within its
area of jurisdiction.
[17]
The prosecution against the applicants has not
been instituted in a division of the High Court. It has been
instituted in the regional
commercial crimes Court in Gqeberha. The
applicants hold employment and are residing in East London. The nub
of their complaint
is that the commute between the two centres will
impact on their income earning capacities, their financial means and
physical
fitness to stand trial. It appears that what the applicants
attempt to raise in these proceedings is an objection to the
jurisdiction
of the court in which the criminal proceedings are
pending. The applicants have indicated that they have pleaded not
guilty to
the charges against them. Neither one of them has indicated
that they have raised a plea to the effect that the court before
which
they have been brought for trial has no jurisdiction.
[18]
This
court is not the forum in which the jurisdiction issue is to be
addressed save to point out that the applicants have on their
own
accord not raised it in the appropriate forum.
[1]
[19]
I now proceed address the essential relief sought
by the applicants.
Review of the
magistrate’s decision
[20]
Section 22(1)(
b
)
of the
Superior Courts Act provides
that the grounds upon which the
proceedings in any magistrates’ court may be brought under
review before a court of a division
are ‘interest in the cause,
bias malice or corruption on the part of the presiding judicial
officer’.
[21]
The applicants’ sole contention is that the
magistrate erred in arriving at his decision. Whether this was a
material error
of law or fact or both, has not been demonstrated in
the papers before this Court. Clearly, the applicants’ bare
contention
does not traverse any of the recognised grounds set out in
the section aforementioned.
[22]
The applicants have not, in the least, been able
to demonstrate that the magistrate misconceived the nature of the
proceedings under
section 85
of the
Criminal Procedure Act as
a
qualification of the general principle of gross irregularity
(assuming of course there may be scope for this being integrated
into
any of the specified categories in
section 22
, either individually or
as a collective).
[23]
Accordingly, the
Superior Courts Act is
of no
assistance to the benefit of the applicants.
[24]
Turning to the purported review under the PAJA.
[25]
In
ABSA Bank Ltd v De
Villiers & Another
[2009] JOL24624
(SCA), Navsa JA held:
‘
Importantly,
PAJA which gives effect to administrative action that is lawful,
reasonable and procedurally fair as contemplated in
the Constitution
provides bases on which “administrative action” can be
reviewed. Administrative action does not include
the judicial
functions of a judicial officer referred to in section 166 of the
Constitution, which includes the Magistrates’
Courts.’
[26]
This
dictum
is in line with the definition of administrative
action in section 1 of the PAJA. The definition excludes the judicial
functions
of a magistrate. It follows therefore that the magistrate’s
decision of 27 November 2017 is excluded from review where the
applicants have not shown that it is unlawful, unreasonable or
procedurally unfair (even if it is assumed that any of these grounds
may be included in the scope of section 22 aforementioned).
[27]
The purported review accordingly fails and it is
therefore unnecessary to consider the issue of delay.
Permanent stay of
prosecution
[28]
The applicants’ founding papers are by no
means a model of clarity. The second applicant states:
‘
We
understand the decision made by [the magistrate] not to entertain our
section 85 application in our favour, is an administrative
action as
defined by the Act and subject to
section 1(ff)
of the
Promotion of
Administrative Justice Act… which
allows for review of the
decision to institute or continue a prosecution.’
[29]
What may well be intended to be conveyed is that
the magistrate’s dismissal of the applicants’ objection
to the charges
tantamounts to a decision to institute or continue the
prosecution.
[30]
The magistrate does not act as prosecuting
authority.
[31]
Under section 179 of the Constitution of the
Republic of South Africa, it is the National Prosecuting Authority
that enjoys the
institutional independence, authority and power to
institute criminal proceedings on behalf of the State, and to carry
out any
necessary functions incidental to instituting such
proceedings.
[32]
Nowhere in the applicant’s papers is any
basis established for impugning the competence of the first
respondent as an incumbent
of the national prosecuting authority to
have instituted or to have made a decision to continue with the
prosecution against them.
[33]
Where the applicants seek recourse to section
1(
ff
) of
the PAJA for claiming a stay of the prosecution it can safely be
concluded that they have misconstrued the definition of
administrative
action contained in section 1 of the PAJA. The
definition excludes from review ‘a decision to institute or
continue a prosecution’.
[34]
The exclusion does not advance the case put up for
the relief claimed.
[35]
Stated differently, the PAJA does not assist the
applicants in advancing grounds for reviewing ‘a decision to
institute or
continue a prosecution’ for the purpose of
attaining a permanent stay of their prosecution.
[36]
Following the magistrate’s decision on 27
November 2017 the applicants, purportedly acting on legal advice,
sought a stay
of the prosecution. The proceedings interceded in the
trial court during June 2018 and were unsuccessful. What followed was
a review
of those proceedings in this Court during April 2019.
[37]
In November 2021 the applicants learnt that the
review was unsuccessful.
[38]
An appeal to the Supreme Court of Appeal appears
to be pending once Legal Aid South Africa has made a decision to
provide legal
representation. As at March 2023 the applicants
maintain that they are yet awaiting a decision in that regard.
Elsewhere in their
papers they indicate without providing specific
detail that only a few days before trial they learnt that Legal Aid
South Africa
will not offer assistance for proceedings in the Supreme
Court of Appeal – but that it is open to them to appeal the
refusal
by Legal Aid South Africa.
[39]
It is evident that the quest for a permanent stay
of prosecution has mutated into a parallel process: on the one hand
there is the
relief claimed in the proceedings before this Court,
while on the other hand lies the proceedings (potentially) pending
before
the Supreme Court of Appeal.
[40]
On the papers presently before this Court the
applicants have not made out a case for a stay of the prosecution
against them.
[41]
In similar vein, it is considered unnecessary to
deal with the issue of delay as the PAJA finds no application in the
circumstances
of this matter.
[42]
In the result the application is dismissed.
M S RUGUNANAN
JUDGE OF THE HIGH
COURT
BESHE
J
:
I agree.
N.
G. BESHE
JUDGE
OF THE HIGH COURT
Appearances:
For
the First Appellant:
In
person
Tel:
081 […]
Email:
m[...]@gmail.com
For
the Second Applicant:
In
person
Tel:
061
[…]
Email:
v[…]@gmail.com
Date
heard:
10
October 2023
Date
delivered:
12
October 2023
[1]
Section 110
of the
Criminal Procedure Act 51 of 1977
reads:
‘
110.
Accused brought before court which has no jurisdiction-
(1)
Where an accused does not plead that the court has no jurisdiction
and it at any stage –
(a)
after the accused has pleaded a plea of guilty or of not guilty; or
(b)
where the accused has pleaded any other plea and the court has
determined such plea against the accused,
appears
that the court in question does not have jurisdiction, the court
shall for the purposes of this Act be deemed to have
jurisdiction in
respect of the offence in question.
(2)
Where an accused pleads that the court in question has no
jurisdiction and the plea is upheld, the court
shall adjourn the
case to the court having jurisdiction.'