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[2022] ZAMPMBHC 53
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Swart v Regional Magistrate Jonker and Another (2881/2018) [2022] ZAMPMBHC 53 (14 July 2022)
THE
HIGH COURT OF SOUTH AFRICA
MPUMALANGA
DIVISION, MBOMBELA MAIN SEAT
CASE
NO: 2881 / 2018
REPORTABLE:
NO
OF
INTEREST TO OTHER JUDGES: NO
REVISED.
14
July 2022
In
the matter between:
PETRUS
DANIEL
SWART APPLICANT
And
REGIONAL
MAGISTRATE JONKER
FIRST RESPONDENT
NATIONAL
DIRECTOR OF PUBLIC SECOND
RESPONDENT
PROSECUTIONS
JUDGMENT
RATSHIBVUMO
J:
Delivered:
This
judgment was handed down electronically by circulation to the
parties' representatives by email. The date and time for hand-down
is
deemed to be 10H00 on 14 July 2022.
[1]
In this review
application, the Applicant seeks this court’s intervention in
the criminal trial pending before the Regional
Court in Piet Retief
(court
a
quo
), in
terms of Rule 53 of the Uniform Rules. The First Respondent is the
presiding judicial officer in that trial. In that trial,
the
Applicant faces a charge of rape in which his employee is the
complainant. DNA samples were taken from him and evidence was
led
regarding the outcome after the same were compared to the DNA found
in the swabs taken from the rape complainant. Two statements
were
presented in the trial; one indicating that the DNA in the swabs
matched that of the complainant’s boyfriend and another
indicating that it matched that of the Applicant. The forensic
analyst testified that the reference to the complainant’s
boyfriend was a mistake as he meant to make reference to the
Applicant. Acting in terms of section 186 of the Criminal Procedure
Act 51 of 1977 (the
Criminal Procedure Act), the
First Respondent
ordered that new DNA samples be obtained from the Applicant for
comparison with the DNA obtained from the swabs,
by a different
forensic analyst. It is this decision that the Applicant seeks to
have reviewed and set aside.
[2]
The
application is opposed by the Second Respondent for reasons that the
Applicant failed to show that he would suffer irreparable
harm unless
an order setting aside the Magistrate’s decision is granted
and/or that the Magistrate’s decision is not
reviewable as he
acted within his powers in terms of the
Criminal Procedure Act.
[3
]
Condonation
was sought from the bar by the Applicant’s counsel for lodging
this application after the 180 days provided in
Rule 53
had expired,
counting from the date the Magistrate granted an application to have
the matter taken on review. Failure to lodge
the application within
the stipulated time was blamed on the delay in getting the trial
record transcribed. Although the proper
procedure would have been for
the condonation to be included in the notice of motion and for
reasons thereof to be included in
the affidavit, there is no
prejudice any of the parties would suffer if the same is granted in
this fashion. Instead, prejudice
may ensue if the alternative request
by the Applicant, to the effect that the application be postponed to
a future date to allow
him to prepare substantive application for
condonation, since the criminal trial remains pending before the
court
a
quo
.
Condonation for bringing the application beyond the prescribed period
is therefore granted.
[4]
It
is common cause that following the First Respondent’s order
referred to above, he clarified it further when he gave reasons
for
his decision saying he did not intend to have new evidence acquired
and presented in a trial, but that the same DNA samples
should be
analysed by a different person and the results to be presented in a
trial. If one looks at the trial record, this appears
to have been a
shift or change from the original order.
[1]
It is also common cause that the said analyses has been done and
completed and the results have been disclosed to the Applicant’s
legal representative but not yet introduced as evidence because of
this application.
[5]
I pause to
indicate that the Applicant’s predicament which resulted in him
launching this review, is not the order as explained
in the reasons
and/or as carried out by the forensic analyst. His impasse was in the
obtaining of new DNA samples as according
to him, it would entail
acquiring and presenting new evidence. He is not certain if he would
have launched this application if
the order was made in the format
now explained and carried out.
[6]
Just
as Mr. Jungbluth (attorney representing the Applicant in the court
a
quo
),
put it on record when he addressed the First Respondent,
[2]
“…
the
High Court will however exercise its inherent power to restrain
illegalities in Magistrates Courts in rare cases
where
grave injustice may otherwise result or where justice might not by
other means be attained
.” [My
emphasis].
[7]
I
guess Mr. Jungbluth had in mind what was said in
Ismail
and Others v Additional Magistrate, Wynberg and Another,
[3]
by
the Appellate Division when Steyn CJ said,
“
Although
there is no sharply defined distinction between illegalities which
will be restrained by review before conviction on the
ground of gross
irregularity, on the one hand, and irregularities or errors which are
to be dealt with on appeal after conviction,
on the other hand, the
distinction is a real one and should be maintained. A Superior Court
should be slow to intervene in unterminated
proceedings in a court
below and should generally speaking confine the exercise of its
powers to ‘rare cases where grave
injustice might otherwise
result or where justice might not by other means be attained.’”
[8]
The
Appellate Division referred to its earlier decision of
Wahlhaus
and Others v Additional Magistrate, Johannesburg and Another
[4]
with
approval where Ogilvie Thomson JA said,
“
while
a Superior Court having jurisdiction in review or appeal will be slow
to exercise any power, whether by mandamus or otherwise,
upon the
unterminated course of criminal proceedings in a court below, it
certainly has the power to do so, and will do so in rare
cases where
grave injustice might otherwise result or where justice might not by
other means be attained. In general, however,
it will hesitate to
intervene; especially having regard to the effect of such a procedure
upon the continuity of proceedings in
the court below and to the fact
that redress by means of review or appeal will ordinarily be
available.”
[9]
The question
should therefore be whether justice could not by other means be
attained if the trial was to be allowed to run its
course. The
temptation is great as it manifested itself in the heads of arguments
by the Applicant and the Second Respondent, to
approach the order of
the court
a
quo
as if
this is an appeal. The interpretation of
section 186
of the
Criminal
Procedure Act would
be dealt by the court of appeal should that need
arise in the future. For now, the question should be limited to
whether the Applicant
shall suffer irreparable harm if the trial was
to run its course. Only if the grave injustice or irreparable harm is
shown would
this court be entitled to proceed and deal with the
interpretation of and powers conferred on a trial court in terms of
section 186
of the
Criminal Procedure Act.
[10
]
Counsel for
the Second Respondent submitted that there was no substantial
prejudice that the Applicant would suffer as the court
a
quo
would
safeguard the Applicant’s rights during the trial and that
should he feel aggrieved, he would still have a recourse
to appeal.
Counsel also emphasised the fact that no new evidence was acquired,
but analysis of the same evidence was done in order
to have clarity
over the “mistake” in the reference to the complainant’s
boyfriend. He also argued that since
DNA does not change with time,
the Applicant should be happy that with the order of the court
a
quo
,
justice will be attained without any margin of error and if he is
innocent, he would be absolved of the charge he faces.
[11]
Contrary to
showing grave injustice or irreparable harm, counsel for the
Applicant submitted that should the Applicant be convicted
of rape,
he would appeal. In essence, he concedes that there is another avenue
available in case the trial proceeds to the end
and the court makes
an adverse finding against him. In my view, that should be the end of
the matter as justice can be attained
even if the trial is allowed to
run its course.
[12]
I am therefore
unable to find that there would be substantial injustice or
irreparable harm suffered by the Applicant in case the
trial is
allowed to run its course. Without pronouncing on the legality of the
order made by the First Respondent, this is not
one of those rare
cases in which the “illegalities” taking place in the
Lower Courts call for immediate intervention
by the High Court. For
this reason, the review application should fail.
[13]
As for the
costs, I do not see any reason why costs should not follow suit. I am
mindful that this application deals with the criminal
trial
proceedings of which no cost order would be made against a losing
party, had the avenues available in the
Criminal Procedure Act been
utilised. However, this was not an appeal, but a review application
in terms of
Rule 53
that the Applicant chose as a means to attain his
goals. In bringing the review application, the Applicant avoided the
avenues
availed to him by the
Criminal Procedure Act, causing
the
Respondents, in particular the Second Respondent, some expenses in
opposing it, which could have been avoided through the avenues
referred to above. Moreover, in the Notice of Motion, the Applicant
asked for costs to be awarded in his favour in case of success.
Surely the opposite should apply in case of failure.
[14]
For the
reasons stipulated above, I make the following order.
[14.1]
The application is dismissed with costs.
TV
RATSHIBVUMO
JUDGE
OF THE HIGH COURT
FOR
THE APPLICANT :
ADV. PF PISTORIUS SC
INSTRUCTED
BY :
JUNGBLUTH ATTORNEYS
C/O
KRUGER & BEKKER
ATTORNEYS
FOR
THE RESPONDENT :
ADV. EN GAISA
INSTRUCTED
BY :
STATE ATTORNEYS
:
MBOMBELA
DATE
HEARD :
12 JULY 2022
JUDGMENT
DELIVERED
: 14 JULY 2022
[1]
See p. 250 of the paginated bundle.
[2]
See p. 255 of the paginated bundle.
[3]
1963
(1) SA 1
(A) at p. 5G-H.
[4]
1959
(3) SA 113
(A) at p. 120B –C. See also
Jojwana
v Regional Court Magistrate and Another
2019 (6) SA 524
(ECM) para 8 where Tokota J (Mlomzale AJ concurring)
held, “It is by now well established that, generally, a High
Court
will not, by way of entertaining an application for review,
interfere with uncompleted proceedings in a lower court.
1
It has been stated that a superior court should be slow to intervene
in unterminated proceedings in the court below, and
should,
generally speaking, confine the exercise of its powers E to
'rare cases where grave injustice might otherwise result
or where
justice might not by other means be attained'.