About SAFLII
Databases
Search
Terms of Use
RSS Feeds
South Africa: Supreme Court of Appeal
SAFLII
>>
Databases
>>
South Africa: Supreme Court of Appeal
>>
2011
>>
[2011] ZASCA 127
|
|
S v Meje (248/11) [2011] ZASCA 127 (13 September 2011)
Links to summary
THE SUPREME COURT OF APPEAL OF
SOUTH AFRICA
JUDGMENT
Case No. 248/11
THE STATE
…..........................................................................................
Appellant
and
ARTHUR TSHEPO MEJE
….......................................................
First
Respondent
EDWARD MQAHAYI
….........................................................
Second
Respondent
Neutral citation:
S v Meje
(248/11)
[2011] ZASCA 127
(13 September 2011)
Coram:
Mthiyane, Maya, Shongwe,
Seriti JJA and Plasket AJA
Heard:
2 September 2011
Delivered:
13 September 2011
Summary:
Criminal Procedure –
territorial jurisdiction of court to be determined at date of
commencement of proceedings – s
110 of
Criminal Procedure Act
51 of 1977
vests territorial jurisdiction in a court in the absence
of objection to jurisdiction.
ORDER
On appeal from:
North Gauteng
High Court (Pretoria) (Engelbrecht AJ and Vorster AJ sitting as a
court of appeal):
(1) The appeal is upheld and the order
of the court below is set aside.
(2) The respondents’ convictions
and sentences are re-instated.
(3) The matter is remitted to the
court below for the appeal to proceed on the merits.
JUDGMENT
PLASKET AJA (MTHIYANE, MAYA,
SHONGWE and SERITI JJA concurring)
[1] The respondents were convicted, in
a regional court sitting in Pretoria, of five and 14 counts of fraud
respectively. The first
respondent was sentenced to seven years’
imprisonment of which two years were conditionally suspended and the
second respondent
was sentenced to eight years’ imprisonment of
which two years were conditionally suspended. They appealed against
both their
convictions and sentences and when their appeals were
heard in the North Gauteng High Court (Pretoria), the court
(Engelbrecht
AJ and Vorster AJ) raised the issue of whether the trial
court had had jurisdiction to try the respondents. They duly found
that
it did not and set aside the respondents’ convictions and
sentences without dealing with the merits of the appeal.
[2] The sole issue in this appeal
brought by the State
1
in terms of
s 311
of the
Criminal
Procedure Act 51 of 1977
is whether the trial court had jurisdiction
to try the respondents. It is clearly a question of law. The issue
arose as a result
of the restructuring of the regional court in the
province of Gauteng after the date of the commission of the offences
of which
the respondents had been convicted but before the date on
which they first appeared in the trial court.
[3] According to the charge sheet the
respondents had committed various acts of fraud during 1998 and 1999
‘at or near Kagiso
in the Regional Division of Gauteng’.
They first appeared on 24 June 2004 in the regional court for that
division sitting
in Pretoria and were, as stated above, subsequently
tried and sentenced in that court.
[4] At the time of the commission of
the offences the Southern Transvaal Regional Division had territorial
jurisdiction in respect
of offences committed in Kagiso (in the
magisterial district of Krugersdorp).
2
Later, however, the Regional Divisions
of the Southern Transvaal and the Northern Transvaal were amalgamated
into one regional division
called the Regional Division of Gauteng
with seats at 23 places including Pretoria. This occurred with effect
from 1 April 2004.
3
[5] The court below set aside the
convictions and sentences of the respondents on two bases. The first
was that as the offences
were committed within the territorial
jurisdiction of the erstwhile Regional Division of the Southern
Transvaal, a court sitting
in Pretoria, within the territorial
jurisdiction of the erstwhile Regional Division of the Northern
Transvaal, did not have jurisdiction
to try the respondents.
Secondly, it held that
s 110
of the
Criminal Procedure Act could
not
avail the State because it did not ‘create substantive
jurisdiction’. It appears to me that the logical conclusion
of
the reasoning of the court below is that no court could have tried
the respondents as the only court that had jurisdiction had
ceased to
exist when the proceedings commenced.
[6] In my view – and for the
reasons that follow – the court below erred in respect of both
of the issues on which it
relied.
[7] In the first instance, the court
below found that the jurisdiction of a court to try an accused must
be determined at the time
the offence with which the accused is
charged was committed. That is contrary to what this court found the
position to be in
S v Mamase
& another
.
4
Snyders JA held in that case that the
‘jurisdiction of a court is determined at the stage that
proceedings are commenced’
and that, in terms of
s 76(1)
of the
Criminal Procedure Act, proceedings
commence when, as in this case in
which the respondents were not summoned to court but were arrested,
the charge sheet is lodged
with the clerk of the court.
5
[8] The respondents first appeared in
court on 24 June 2004. They were first provided with the charge sheet
on a date between their
appearances on 5 October 2004 and 30 November
2004 because, on the latter date, it is recorded that they had
confirmed that they
had received both the docket and the charge
sheet. While there is no record of when the charge sheet was lodged
with the clerk
of the court, it can be accepted that the earliest
date on which this could have occurred was 24 June 2004.
Consequently, the proceedings
against the respondents commenced, at
the earliest, on 24 June 2004. As at that date, one regional
division, the Regional Division
of Gauteng which had came into
existence on 1 April 2004, had territorial jurisdiction over the
entire province of Gauteng. As
Kagiso falls within the province of
Gauteng, any court of that Regional Division, including one sitting
in Pretoria, had jurisdiction
to try the respondents on charges of
fraud.
[9] In the second instance, the court
below erred in its application of
s 110
of the
Criminal Procedure
Act. This
section provides:
‘
(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.’
[10] In
S
v Pale & ‘n ander
6
this court set out the purpose and
effect of
s 110
and, in so doing, stated in terms that it was
intended precisely for cases such as the present (on the court
below’s assumption
that the trial court had no territorial
jurisdiction). In that case Viviers JA held:
7
‘
Artikel
110 is hoofsaaklik bedoel om voorsiening te maak vir die geval waar
‘n bepaalde hof wel jurisdiksie het om die misdaad
waarvan die
beskuldigde aangekla word, te bereg, maar die verkeerde hof is vanweë
een of ander jurisdiksionele feit
soos
bv dat die misdaad buite die hof se regsgebied gepleeg is.
Die
artikel skep nie substantiewe jurisdiksie nie en kan nie aan ‘n
landdros ‘n groter jurisdiksie verleen as wat hy
regtens het
nie. Dit verleen bv nie regsbevoegdheid aan ‘n landdros om ‘n
saak te verhoor wat hy ingevolge art 89 van
die Wet op Landdroshowe
nie mag verhoor nie, al betwis ‘n beskuldigde nie die
regsbevoegdheid van die hof nie. . . . So ook
kan art 110 nie
jurisdiksie verleen aan ‘n hof om ‘n misdaad wat in ‘n
ander land gepleeg is, te bereg nie.
Artikel
110 verleen wel territoriale jurisdiksie aan ‘n hof wat dit nie
gehad het nie, suiwer op grond van die beskuldigde
se stilswyende
aanvaarding daarvan, deurdat hy die verhoor laat voortgaan sonder om
die punt te opper wanneer hy pleit
’
.
(Emphasis added)
[11] Regrettably, it appears that the
distinction between the concepts of substantive jurisdiction –
the jurisdiction, in
this case, to try accused charged with fraud –
and territorial jurisdiction eluded the court below.
Section 110
does
not confer substantive jurisdiction on a court but, in the absence of
a plea of absence of jurisdiction,
8
it may acquire territorial
jurisdiction it otherwise does not have.
[12] As a result of the above, I am of
the view that the appeal must succeed.
Section 311(1)(a)
of the
Criminal Procedure Act empowers
this court, when it upholds an appeal
by the State from a high court sitting as a court of appeal, to
‘re-instate the conviction,
sentence or order of the lower
court appealed from, either in its original form or in such a
modified form as the said Appellate
Division may consider desirable’.
The convictions and sentences of the respondents must obviously be
re-instated in their
original form but their appeals have not been
heard on the merits. While
s 311
does not explicitly provide that
this court may remit a matter to the appeal court of first instance,
it was held in
Attorney-General
(Transvaal) v Steenkamp
9
(dealing with a predecessor of
s 311)
that in circumstances such as these the matter could be remitted as
‘it could hardly have been the intention of the Legislature
that, where the order of this Court does not finally dispose of the
issues raised in the first Court of Appeal, some of those issues
must
… be left hanging in the air’.
[13] The following order is made.
(1) The appeal is upheld and the order
of the court below is set aside.
(2) The respondents’ convictions
and sentences are re-instated.
(3) The matter is remitted to the
court below for the appeal to proceed on the merits.
_____________________
C PLASKET
Acting Judge of Appeal
APPEARANCES
APPELLANT: J M Ferreira (with him K
Malapane)
Office of the Director of Public
Prosecutions, Pretoria
RESPONDENTS: No appearance
1
There
was no appearance by or on behalf of the respondents although they
were aware of the appeal and the date on which it was
argued.
2
Government
Notices 641 and 642, promulgated in
Government
Gazette
7515
of 27 March 1981 created, out of the Transvaal Regional Division,
the Regional Divisions of the Northern Transvaal and the
Southern
Transvaal respectively.
3
Government
Notice 219,
Government
Gazette
26091
of 27 February 2004.
4
S
v Mamase & another
2010
(1) SACR 121
(SCA).
5
Para
12.
6
S
v Pale & ‘n ander
1995
(1) SACR 595
(A).
7
At
598d-h. (References omitted.) See too Etienne Du Toit, Frederick J
De Jager, Andrew Paizes, Andrew St Quintin Skeen and Steph
van der
Merwe
Commentary
on the
Criminal Procedure Act
16-1
(service
issue 45, 2010).
8
Criminal
Procedure Act, s
106(1)(f).
9
Attorney-General
(Transvaal) v Steenkamp
1954
(1) SA 351
(A) at 357F-G.