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[2022] ZAECMKHC 53
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Mkhize v Director of Public Prosecutions and Another (632/2020) [2022] ZAECMKHC 53 (23 August 2022)
IN
THE HIGH COURT OF SOUTH AFRICA
EASTERN
CAPE DIVISION, MAKHANDA
CASE
NO. 632/2020
In
the matter between:
LINDILE
ERIC MKHIZE
Applicant
and
THE
DIRECTOR OF PUBLIC PROSECUTIONS
First Respondent
THE
DISTRICT MAGISTRATE NAIDOO
Second Respondent
JUDGMENT
RUGUNANAN
J
[1]
Before us is a review application initiated in a notice of motion
dated
30 January 2020. The review is in terms of
section 22
of
the
Superior Courts Act 10 of 2013
read with rule 53 of the Uniform
Rules of Court. It emanates from part-heard proceedings in the
Magistrates’ Court, Makhanda
(Case No. B 667/2018) in which the
applicant, who appears before the second respondent as presiding
magistrate, is charged with
the offence of dealing in drugs.
[2]
In the
main, the applicant seeks to review and set aside the trial
proceedings presided over by the second respondent. Alternatively,
an
order is sought (i) that the only witness who testified with regard
to the evidence of a search and seizure, be recalled for
further
cross-examination; (ii) that the similar fact evidence led by the
prosecution during the trial, be struck from the record;
and (iii)
that, in respect of the evidence of similar fact (and presumably the
trial-within-the-trial
[1]
), the
second respondent be directed to provide reasons for ‘allowing
the impugned evidence as admissible’. The applicant,
in
addition, seeks a costs order against any of the respondents opposing
the application.
Background
[3]
On 2 May 2018 while driving a motor vehicle on
the national road on the outskirts of Makhanda (formerly Grahamstown)
the applicant
was stopped by two police officers, Sergeant Frans and
Sergeant Brooks. Following a search of the vehicle and the seizure of
an
enclosed package containing mandrax and cash amounting to R137
000, the applicant was arrested. In the course of the proceedings
before the magistrate a trial-within-a-trial was held for determining
the admissibility of the evidence relating to the search
and seizure.
[4]
Sergeant Frans, who arrested the applicant,
testified as to the admissibility of such evidence. He believed that
a search warrant
would be issued to him in terms of section 22(b)(i)
and (ii) of the Criminal Procedure Act 51 of 1977 if he applied
therefor but
that the delay in obtaining it would defeat the object
of the search.
[5]
Although the applicant, who was throughout the
proceedings legally represented, did not testify, it was contended on
his behalf
that the search of the vehicle was rendered unlawful
because it was conducted without his consent and as a consequence,
the evidence
adduced in the trial-within-a-trial was inadmissible.
[6]
The magistrate ruled in favour of the
admissibility of the evidence without giving reasons but indicating
nonetheless that they
would be furnished in a judgment upon
conclusion of the main trial.
[7]
In the course of the matter proceeding on the
merits in the main trial, Sergeant Frans and Sergeant Brooks
testified. At some stage
the prosecutor made an application for the
leading of similar fact evidence from one Sergeant Cornelius
regarding the
modus operandi
of the applicant in the commission of a similar offence in Knysna
when he was arrested at a police roadblock after a search and
seizure
of a package containing mandrax. Notwithstanding objection, the
application was granted though, due to a deficiency in
the record (as
pointed out below) it is unknown if the magistrate gave reasons, save
for applicant’s averment that she did
not. The State however
closed its case once the magistrate had ruled the evidence of similar
fact to be admissible.
[8]
It
is against this background that the present review proceedings are
pillared on the statutory grounds of bias, gross irregularity
and the
admission of inadmissible or incompetent evidence.
[2]
[9]
It bears mentioning that the record of the
proceedings in the trial court does not contain the transcript of the
evidence indicating
the stage at which similar fact evidence was
introduced – nor does it contain the evidence of the
trial-within-the-trial.
Neither of the parties took issue with this
deficiency and argued the matter on the set of affidavits filed in
this court.
[10]
Given the failing in the record (and the
applicant’s founding affidavit – as to which see below)
it is no surprise that
an attempt is made in his heads of argument to
introduce and elucidate factual detail both as to the
trial-within-the-trial and
the ruling on the evidence of similar fact
as an indication of the case which is to be put forward on review.
[11]
Heads
of argument do not constitute evidence given under oath.
[3]
They are merely persuasive comment by the parties with regard to
questions of fact or law and offer no substitute for affidavits.
Parenthetically, heads of argument were not drawn by applicant’s
counsel who appeared before us, hence this censure is not
attributed
to her.
[12]
What is obvious from the record is that the
applicant terminated the mandate of his erstwhile legal
representative and secured further
representation from an alternate
firm of attorneys with senior counsel being instructed to assume
conduct of the trial.
Recalling
the State witness
[13]
In raising this issue senior counsel addressed the magistrate stating
that he had ‘just
come on board’ and ‘that there
are a couple of very important questions relating to the
admissibility of the evidence’
adduced during the
trial-within-the-trial.
[14]
I pause to mention that Sergeant Frans relied on the provisions of
22(b)(i) and (ii) of the Criminal Procedure
Act. The applicant did not testify, but in his founding affidavit the
admissibility
challenge is pegged on averments that he was not
informed that he had a ‘right to refuse consent’ and that
he never
consented to the search of the vehicle driven by him. Two
points need to be made: First, the right which the applicant
arrogates
to himself is not an attribute of section 22; and second, a
plain reading of the section reveals that consent is not a
jurisdictional
prerequisite for triggering the operation of
subsections (b)(i) and (ii). Furthermore, Sergeant Frans was not
requested to comment
on the applicant’s right to refuse
consent.
[15]
Gauging from the very brief address by senior counsel, the recalling
of the witness appears
to include a challenge directed at the
admissibility of the evidence in the trial-within-a-trial.
Applicant’s counsel did
not specify the specific issues, nor
any issues at all, which he intended to traverse with Sergeant Frans.
This failing is similarly
manifest in the applicant’s founding
affidavit, more pertinently where he states:
‘
The original
attorney representing me did not ask all the right questions in the
view of senior counsel and senior counsel felt
the need to re-examine
some of the comments that the witness Frans, made and pose questions
to him which senior counsel believed
should have been posed.’
[16]
It is salutary for an applicant in motion proceedings to make out its
case in its founding
papers. From the aforegoing, one cannot
appreciate what exactly it is that the applicant conveys, except for
deducing that this
court ought to elevate and weigh the importance of
his case on the pretext of what senior counsel believes to be
relevant.
[17]
Elsewhere in his founding affidavit, the applicant berates the
magistrate for having given
‘a laconic, unhelpful and frankly
meaningless judgment’. It does not lie in the mouth of the
applicant to be scornful
of the magistrate in such trenchant
language, particularly where it can be stated without hesitation that
the deficiency in his
papers and his approach to this court is
nothing more than an abuse of process. Subjective language by a
layperson should never
be allowed to attribute disrespectable
reflections upon a judicial officer. Legal representatives acting for
litigants in these
circumstances should caution their clients
accordingly; and choice of language by those employed to draft papers
on behalf of their
clients should be restrained and rarely, if ever,
be couched with indignance.
[18]
Other than averring that the magistrate was biased and that her
refusal to recall the witness
constituted a gross irregularity, no
facts have been presented by the applicant which could inform the
basis upon which this court
should order that Sergeant Frans be
recalled at the instance of defence counsel.
[19]
Where
issues of relevance have not been identified, this court is hamstrung
to ask how did the magistrate’s ruling infringe
the applicant’s
asserted right to a fair trial to his detriment and prejudice. In
circumstances where the applicant was present
in court, remained
silent and did not testify (it being his right to do so), the ruling
by the magistrate had to be made on her
assessment of the evidence
presented by the State.
[4]
That
much ought to be plain to the applicant, rendering his insistence on
reasons a ruse. In the particular circumstances of this
matter, the
magistrate having indicated that reasons will be deferred does not
lay a foundation for imputing bias.
[20]
Moreover, a conclusion that the magistrate’s ruling infringed
the applicant’s
asserted right to a fair trial, cannot, without
more, be drawn where no factual basis is laid for recalling the
State’s
witness. In the context of the present proceedings the
applicant’s bare contention that he maintained silence on the
advice
of his erstwhile legal representative does not assist him to
advance a case where none is made out in his founding affidavit. The
absence of a properly motivated factual offensive (where the
professed lack of consent does not appear to have been the issue in
the trial-within-the-trial) renders the challenge on the ground of
gross irregularity devoid of merit.
[21]
The
magistrate’s refusal to allow the witness to be recalled –
and by implication her ruling on the admissibility of
the evidence –
is interlocutory; and should new facts come to light at a later
stage, it would be the duty of the trial court
to reconsider the
issue, and if necessary, overrule its own decision/s.
[5]
Admissibility
of similar fact evidence
[22]
In his own words, the applicant avers that the evidence is ‘of
little help to the
State’. It is therefore presumptuous at this
stage for the applicant to assert that his character has been
tainted, prior
to the conclusion of the trial proceedings. At that
point the trial court, having heard all the evidence, would be
required to
make an assessment of what is after all a mosaic of proof
with attendant credibility findings in respect of each of the
participants.
This much was properly conceded by counsel who appeared
for the applicant in these proceedings, with the attendant concession
that
reasons, would be of no functional advantage in circumstances
where only one version of events is extant.
The
application for condonation
[23]
The first respondent sought condonation for the
late filing of its answering affidavit and filed an application on
notice to the
applicant on 10 March 2022. In an
ex
tempore
judgment this court,
per
Bloem J, granted condonation. While it is unnecessary to traverse the
merits of that application, the stance adopted by applicant’s
counsel who indicated that the application was opposed from the bar
deserves comment.
[24]
In the interval since the filing of the
application for condonation, no opposing affidavit was filed let
alone a notice to oppose.
Despite this applicant’s counsel
endeavoured to address us on the merits of the applicant’s
opposition and persisted
on the ostensible basis that to her
knowledge and in her view it was an acceptable practice to adopt this
approach.
[25]
The approach is misinformed and is incorrect.
[26]
Rule
6(5) of the Uniform Rules of Court stipulates time frames and
provides clear procedural guidance on what a litigant must do
in the
event of being served with a notice of motion. Where proceedings are
brought on notice (as was the case in this instance)
an answering
affidavit must be filed within a reasonable time.
[6]
In either instance, whether proceedings are launched on notice of
motion or by notice, if a party intends to oppose, an answering
affidavit or a notice in terms of rule 6(5)(d)(iii) must be filed.
The rationale for an answering affidavit is simple. In motion
proceedings the affidavits constitute both the pleadings and the
evidence and the issues and averments in support of a party’s
case should appear clearly therefrom.
[27]
To have expected this court to entertain
counsel’s submissions from the bar would have been tantamount
to supplanting the
purpose of an opposing affidavit and sanctioning
litigation by ambush.
Costs
[28]
The usual rule is that costs follow the result. Save for the first
respondent, the second
respondent (although having filed an
‘explanatory affidavit’) made no appearance. For the
first respondent it was contended
that punitive costs should be
awarded against the applicant in the event of a dismissal of the
review application, and that the
applicant’s complaint about
the delay in finalising these proceedings should be countered by his
failure to have set the
matter down for hearing notwithstanding the
late filing of the first respondent’s answering affidavit. We
are not persuaded
that the applicant should be visited with a
punitive costs order for the reason that he acts on legal advice. In
so far as the
application for condonation (an indulgence) is
concerned, it is appropriate that the first respondent pays the
applicant’s
unopposed costs.
[29]
In the circumstances the following order
issues:
(i)
The review application is dismissed with
costs, such costs to exclude the costs of the second respondent.
(ii)
The first respondent shall pay the
applicant’s unopposed costs in the application for condonation.
M.
S. RUGUNANAN
JUDGE
OF THE HIGH COURT
I
agree
G.
H. BLOEM
JUDGE
OF THE HIGH COURT
APPEARANCES:
For
the Applicant:
S.
Cubungu
Instructed
by
Griebenouw
Inc.
c/o
Netteltons Attorneys
High
Street
Makhanda
(Ref:
R. Hart)
For
the First Respondent: L.
Montsho-Moloisane SC
Instructed
by
The
State Attorney
c/o
Yokwana Attorneys
New
Street
Makhanda
(Ref:
N. Yokwana)
Date
heard:
18 August 2022
Date
delivered:
23 August 2022
[1]
The
relief couched in the notice of motion is nebulous
[2]
Section
22(1)(b)
, (c), and (d) of the
Superior Courts Act
[3
]
Maboho
T and Others v Minister of Home Affairs
(833/2007,
1128/2007) [2011] ZALMPHC 4 (28 November 2011) at paragraph [13]
[4]
Compare
S
v Katoo
2005 (1) SACR 522
(SCA) at 529E, also
S
v Boesak
[2000] ZACC 25
;
2001 (1) SA 912
(SCA) at paragraph
[24]
[5]
Compare
S
v Mkwanazi
1966 (1) SA 736
(A) at page 742H-743A; also
Smith
v S
(CAF10/13)
[2013] ZANWHC 84
(11 December 2013) at paragraph [15]
[6]
Erasmus
Superior Court Practice, second edition, volume 2 at D1-83 [Service
6, 2018]