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2022
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[2022] ZANCHC 25
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Mshudulu v Regional Court Magistrate Kimberley, Northern Cape and Another (1518/2021) [2022] ZANCHC 25; 2023 (1) SACR 108 (NCK) (20 May 2022)
IN
THE HIGH COURT OF SOUTH AFRICA
(NORTHERN
CAPE PROVINCIAL DIVISION, KIMBERLEY)
Case
No: 1518/2021
Reportable:NO
Circulate
to Judges: YES
Circulate
to Magistrates: YES
Circulate
to Regional Magistrates:YES
In
the matter between:
MVULENI
ELVIS MSHUDULU
Applicant
and
THE
REGIONAL COURT MAGISTRATE KIMBERLEY,
NORTHERN
CAPE
1
st
Respondent
THE
DIRECTOR OF PUBLIC PROSECUTIONS,
NORTHERN
CAPE
2
nd
Respondent
Coram:
Lever J et Chwaro AJ
JUDGMENT
Lever
J
1.
This is a review in which applicant seeks to review a decision
of the
trial Magistrate before the finalisation of the relevant criminal
trial. By way of a brief background, the applicant faces
9 charges in
the Regional Magistrates Court, Kimberley. The charges include,
inter
alia
, corruption, an attempt to defeat the ends of justice,
corruption with an alternative charge of extortion and assault with
intent
to do grievous bodily harm (assault GBH). The incidents on
which these charges are based date back to as early as May 2015 but
appear to extend up to 2017.
2.
The applicant pleaded not guilty to all the charges and the
matter
proceeded to trial. During the evidence in-chief of the first witness
called by the prosecution, the prosecution wanted
to introduce
recordings of certain telephonic conversations the said witness had
recorded of himself and the applicant. The defence
objected and
motivated for the procedure of a trial-within-a-trial to be followed.
The trial Magistrate ruled that it was not necessary
to follow the
procedure of a trial-within-a- trial. After the recordings were
played in court the applicant moved for the matter
to be postponed so
that the present application to review the decision not to follow the
procedure of a trial-within-a-trial could
be launched. The trial was
duly postponed for that purpose.
3.
The applicant on the 23 July 2021 filed a Notice of Motion and
supporting affidavit seeking a review under the provisions of Rule 53
of the Uniform Rules of Court. The first respondent (the
Magistrate)
has not opposed the application and abides the decision of the court.
The second respondent, the DPP Northern Cape
opposes the application
and has filed an answering affidavit. The applicant has filed the
reconstructed record of the relevant
proceedings in accordance with
Rule 53(3). The applicant has indicated that he does not intend to
amend his Notice of Motion. The
applicant has not supplemented his
founding affidavit. Nor has the applicant filed a replying affidavit.
Nonetheless, the applicant
has elected to proceed without filing a
replying affidavit or supplementing his founding affidavit.
4.
The only substantive grounds raised by Mr Nel, who appeared
for the
applicant, to review the said decision not to follow the procedure of
a trial-within-a-trial is that the recording is not
the original
recording and that the recording is not authentic.
5.
Mr Nel approaches the matter on the basis that the question
to be
determined by this court on review is whether such recording is
documentary evidence or real evidence. Mr Nel has referred
this court
to the relevant authorities on that question.
6.
Mr Nel contends that the recording must be treated as documentary
evidence and that such recording is not real evidence. Accordingly,
Mr Nel submits that the party that wishes to introduce such
documentary evidence must, over and above the general requirements
for admissibility, establish that it is the original recording
and
that it is authentic in the sense that it is what it purports to be.
7.
Mr Cloete, who appeared for the second respondent, approached
the
matter on the basis that this court must ask itself one question.
Namely, can it be said that the decision of the magistrate
not to
hold a trial-within-a-trial will result in an irreversible and
serious failure of justice?
8.
Mr Cloete submitted that it would only be if the answer to that
question was ‘yes’ that the applicant should succeed in
his application.
9.
Mr Cloete conceded that this court could, even where proceedings
in
the Magistrates court had not yet terminated, interfere and review
such proceedings, in order to prevent an otherwise irreversible
and
serious failure of justice.
10.
However, Mr
Cloete submitted on the authority of WALHAUS v ADDITIONAL MAGISTRATE,
JOHANNESBURG
[1]
that the High
Court will only interfere in the unterminated proceedings in a
Magistrates Court where exceptional circumstances
have been
established. Mr Cloete also referred this court to the matter of
GOUNDEN & ANOTHER v NONCEBU N.O. & OTHERS
[2]
to demonstrate that the applicant is required to establish that there
is a basis for the High Court to interfere in criminal proceedings
that have not yet terminated in the Magistrates court. Further, that
the minimum requirement for the High court to interfere in
such
manner would be ‘exceptional circumstances’. In the event
of the applicant failing to establish the aforesaid
requirements,
that would be the end of the matter.
[3]
11.
Mr Cloete maintained that the applicant would have to establish these
exceptional
circumstances before the court would be justified in
proceeding to the question postulated by Mr Nel, i.e. whether the
recording
was documentary or real evidence. Mr Cloete maintained that
the applicant had not set out or established exceptional
circumstances
and irreparable harm as a pre-requisite for this court
to interfere at this stage of the proceedings.
12.
In my view, Mr Cloete is correct, the applicant must establish both
exceptional
circumstances and irreparable harm before this court will
interfere in criminal proceedings that have not yet terminated in the
lower court. More especially consider the question postulated by Mr
Nel as to whether the recording is to be treated as ‘documentary
evidence’ or ‘real evidence’.
13.
The applicant in his affidavit in support of his application for
review does
not set out or establish exceptional circumstances for
this court to intervene before the completion of the trial in the
Magistrate’s
court.
14.
The applicant in relation to irreparable harm only makes the
following contention
in his founding affidavit:
“
4.4 I
am advised that the admission of evidence without hearing all the
relevant evidence during a trial-within-a-trial
in circumstances
where the admissibility thereof is disputed will cause irreparable
harm to my case which I will not be able to
rectify during an
appeal.”
15.
There is no attempt to elaborate and identify or explain the
irreparable harm
that could not be rectified on appeal in the said
founding affidavit.
16.
The Magistrate clearly acted within her discretion in deciding
whether a trial-within-a-trial
process was called for on the facts of
this particular case.
17.
It is clear from the record of proceedings that the Magistrate has
not yet decided
on whether the relevant recordings are admissible or
not.
18.
The question of the authenticity of the recordings can be properly
tested in
cross-examining on this aspect and the leading of any other
witness called to establish its authenticity, including the
applicant.
19.
Similarly, the question of whether the recorded conversations took
place or
not, is also an issue that can appropriately be tested in
cross-examining the witness concerned and adducing relevant evidence
to counter that of the State.
20.
As is set out above, no irreparable harm that applicant will suffer
if this
court does not intervene at this stage has been set out in
applicant’s founding affidavit with any degree of
particularity.
21.
In these circumstances, the applicant has not established the minimum
basis
required for this court to intervene before the proceedings in
the Magistrate’s court have been concluded. Accordingly, the
review stands to be dismissed.
22.
In regard to costs, both the applicant and the second respondent
agreed that
this was not a matter in which costs should be awarded to
or against one of the parties. I agree that this is the appropriate
approach
on the facts of this case.
In
the circumstances the following order is made:
1.
The application is dismissed.
2.
There is no order as to costs.
Judge
Lawrence Lever
Northern
Cape Division, Kimberley
I
agree
Acting
Judge Chwaro
Northern
Cape Division, Kimberley
APPEARANCES:
APPLICANT:
Adv IJ Nel oio Van Den Heever Attorneys
RESPONDENT:
Adv JJ Cloete oio Office of the Director of Public Prosecutions
Date
of Hearing: 09 May 2022
Date
of Judgment: 20 May 2022
a
[1]
1959 (3) SA 113
(A) at 199E-120H.
[2]
2018 (2) SACR (KZP) at paras [13] and [14].
[3]
Gounden., above at para [13].