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[2021] ZAGPPHC 576
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S v Essop and Another (94/2020) [2021] ZAGPPHC 576 (17 June 2021)
IN THE HIGH COURT OF SOUTH
AFRICA
(GAUTENG DIVISION, PRETORIA)
(1)
REPORTABLE:
NO
(2)
OF
INTEREST TO OTHER JUDGES: YES
(3)
REVISED
17/6/2021
Case
number: 94/2020
In
the matter between:
THE
STATE
Vs
IESSOP
AH
LAMALIA
REVIEW
JUDGMENT
TOLMAY, J:
[1]
This
case came before me in terms of section 304A as a special review on
21 August 2020. On 28 August 2020 certain comments were
sent to the
learned magistrate. The record was voluminous and in a state of utter
chaos and incomplete.
[2]
As a result of the state of the record I
requested the magistrate to attend to the following:
a)
The
record was incomplete. The evidence of the state witnesses was not
contained in the record.
b)
Mr Lamalia's evidence was followed by an
address by the prosecutor.
c)
The last page of the record referred to
a postponement, apparently for judgment, but neither the proceedings
of 2 December nor the
judgment was contained in the record.
d)
The transcript commenced with a second
174 judgment, there was apparently an appeal and judgment by the High
Court. Should that
judgment of the High Court not be included in the
record?
e)
There was mention of Rule 53
proceedings, which the Director of Public Prosecution seemed to want
to oppose, the learned magistrate
was requested to fully set out what
happened with the Rule 53 proceedings.
f)
The learned magistrate indicated in a
document, stamped on 14/8/2020, in response to Rule 53 proceedings
apparently that she agreed
with the defence counsel that the
convictions may result in duplication of charges and that this
prompted her to refer the matter
for review. She was requested to
consider the law applicable to section 304A and the authorities
relating to the section.
g)
The learned magistrate was referred to
the Rule 53 procedure and was asked to indicate whether apart from
the 2014 review proceedings,
another review was pending?
h)
The learned magistrate was asked to
please set out:
i)
the irregularities that occurred that
would constitute grounds for review; and
ii)
if she did not rely on section 304(A),
on which constitutional or common law principles she relied for the
review.
i)
She was asked
whether, seeing that the accused was represented if section 304(A)
could be invoked? She was referred to S
v
Klaase
1998(1)
SACR 317 C, S
v
Makhuble
1987(2)
SA 541 (T).
j)
She was asked on what basis did the learned magistrate contend that
the
proceedings were not in accordance with justice.
(S v Masiya
&
others
2013(2) SACR 363 GNP)
[3]
On 23 October 2020 the learned
magistrate sent her comments to the Court. On 8 November 2020 I
referred the matter to the OPP to
obtain their opinion. On 12
February 2021 the OPP provided the Court with their opinion. It is
unclear why such a long time lapsed
before the comments of the DPP
were received by the Court. At the time I was on sick leave until 1
May 2021. The review was allocated
to another judge, as is the
custom, if the judge who initially dealt with a review is
unavailable. I am not aware of the date of
the allocation to the
other judge, but on 21 April 2021 the judge to whom it was allocated
refused to deal with the matter. In
a letter she stated that a J4 had
not been completed by the registrar and she further raised the
complaint that the review should
have been allocated to me, since I
dealt with it initially. I do not know whether she was informed of
the fact that I was on sick
leave. She sent it back to the Registrar
who finally sent it to me on 17 May 2021.
[4]
My registrar was informed by the DPP on 17 May 2021 that due to the
delay of the review
the case was postponed for three months. I
requested the views of counsel for the accused. I obtained counsel
for accused number
two's heads of argument on 27 May 2021, I still
have had no response from the representative of accused number one,
but decided
to proceed with the judgment in order to prevent any
further delay.
[5]
In this instance two critical issues should be dealt with which are
not related to
the merits of the matter. Firstly, a judge is obliged
to deal with a review, which was initially dealt with by another
judge, if
that judge is unavailable. Secondly, there is an obligation
on the registrar dealing with the reviews not to merely accept a
refusal
of a judge to deal with a review. The correct approach in my
view is that the registrar should approach the ADJP for guidance and
assistance. If reviews are not dealt with expeditiously the whole
purpose of section 304A is jeopardised and accused persons are
prejudiced.
[7]
The accused are currently tried in the
Specialised Commercial Court Crime Court, Pretoria. They were charged
with 2 counts, namely
, count one, a count of theft - general
deficiency; alternatively, 30 counts of theft against both accused
(alternative counts
1 to 30). Accused no 2 was also charged with 23
additional alternative counts of theft (alternative counts 31 to 53).
Count two
constitutes of 1 count of contravening section 83(9) read
with section 78(4) of the Attorneys Act, Act No 53 of 1979 (failure
to
keep proper accounting records).
[8]
Both accused pleaded not guilty to all
charges on 6 September 2011 and both were legally represented during
the trial. Before the
accused presented their case, the presiding
magistrate was requested to make a ruling on hearsay evidence that
had been provisionally
admitted during the State's case. It was
argued by the defence that the court should state clearly what
evidence the accused should
answer. After the magistrate refused
because she was of the view that she was
"
functus officio" ,
both accused
informed the trial court that the matter would be taken on review. It
was submitted that inadmissible hearsay evidence
was considered by
the magistrate, when the application for discharge was refused and as
a result she committed an irregularity.
[9]
A review application was then brought by
the accused in terms of Rule 53 of the Uniform Rules of Court in
which the following relief
was sought:
a)
that the proceedings before the
magistrate would be reviewed and set aside because of an irregularity
committed.
b)
that an order should be issued to the
effect that the prosecution of the accused should be permanently
stayed.
[10]
After hearing the review the Court ordered that:
a)
the
magistrate's decision to dismiss the application in terms of section
174 of the Act be set aside;
b)
that
the magistrate considers and pronounce her ruling on the
admissibility of the provisionally admitted hearsay evidence ;
c)
that
the magistrate reconsiders her decision in terms of the application
for discharge made by the accused in terms of section 174
of the Act.
[11]
After reconsidering the abovementioned
aspects, the presiding magistrate ruled:
a)
that
the hearsay evidence in relation to the following alternative counts
to count 1 is excluded: alternative counts 1, 7, 8, 9,
11, 12, 13,
14, 15, 16, 17, 18, 19, 21, 22, 23, 24, 25, 26, 27, 28, 29, 30;
b)
that the accused are acquitted on
abovementioned alternative counts ;
c)
that the application in terms of section
174 of the Act was dismissed in relation to alternative counts 2, 3,
4, 5, 6, 10 and 20.
[12]
The accused were thus facing the
following remaining charges after closure of the State's case and the
magistrate's (reviewed) decision
of the section 174 application for
discharge:
a)
COUNT 1: 1 count of theft - general
deficiency; alternatively, 30 counts of theft against both accused
(alternative counts 31 to
30). Accused no 2 was also charged with 23
additional alternative counts of theft (alternative counts 31 to 53)
b)
COUNT 2: 1 count of contravening section
83(9) read with section 78(4) of the Attorneys Act, Act No 53 of 1979
(failure to keep
proper accounting records)
[13]
On 2 December 2019 the magistrate
delivered judgment and convicted the accused as follows:
a)
both
accused are found guilty in respect of count 1 (the main count):
Theft, general deficiency in the amount of R1 835 000. Accused
no 2
is also found guilty of the alternative counts to count 1
(alternative counts 31 to 53)
b)
both accused are found guilty in respect
of count 2: contravening section 83(9) read with section 78(4) of the
Attorneys Act, 53
of 1979 (failure to keep proper accounting
records).
[14]
The matter was then postponed to 16
March 2020 for sentencing. On 16 March 2020, advocate Engelbrecht SC,
on behalf of accused two
pointed out to the magistrate that she had
erroneously convicted accused no 2 on the main count (Count 1) as
well as the alternatives
to the main count (alternative counts 31 to
53).
[15]
Advocate Engelbrecht SC argued that
there was a duplication of convictions and requested the court to
refer the matter to the High
Court "for a special review in
terms of section 304A" of the Criminal Procedure Act, No 51 of
1977 (the CPA).
[16]
In this matter section 83 of the CPA
finds application, which provides that where it is doubtful which of
several offences is constituted
by the facts of a case, an accused
may be charged with "the commission of all or any such offences"
and such counts be
tried together. The accused may also be charged
with different counts in the alternative. In such a case, the accused
cannot be
convicted of all charges if more than one charge or
conviction results from the same criminal act.
[17]
The matter was then referred by the
magistrate to the High Court for review.
[18]
The learned magistrate provided her
response and attended to the queries raised and the DPP's comments
were requested and received
as set out above.
[19]
Section 304A provides that a magistrate
or regional magistrate, who is of the opinion that proceedings in
which a person has been
convicted are contrary to the law, may submit
the matter for review before sentence. It is however to be noted that
this particular
section only applies to undefended accused. In S
v
Klaasse
1998(1) SACR the court found
that section 304(A) should not have been applied and referred it back
to the magistrate to proceed
with the sentencing. It was pointed out
that the section should not be used by magistrate to address an
uncertainty or hesitation
by the magistrate.
[20]
It is common cause that both accused
were legally represented throughout the proceedings. Therefore,
section 304A of the CPA is
ordinarily not applicable. In S
v
Shamathla
2004(2) SACR 570 the court
however stated that if an irregularity occurred in proceedings, of so
gross a nature that it eventually
will be set aside, it would be a
senseless exercise in futility to insist that the letter of the law
be followed, and the matter
be remitted to the magistrate to pass a
sentence, which in due course will be set aside. It was stated that
if it is in the interest
of justice a court should intervene. In S
v
Makhubele
1987(2) SACR 541 on 545 it
was further stated as follows:
"In
particular it is to be noted that the test throughout is whether the
relevant proceedings were or were not in accordance
with justice.
Trivial irregularities or procedur.al imperfections are immaterial,
only where there has been a failure of justice,
real and substantial
prejudice to the accused, are the proceedings liable to interference.
First and foremost, piecemeal litigation
is inherently undesirable."
(See also S
v Masiya
&
Others
2013(2) SACR 363
(GNP) and
Gounden
&
another v Noncebu NO
&
others
2018(2) SACR 186 (KZP) at 14. Each case should be
determined with due consideration of the facts.
[21]
In
S v
Masiya
&
others,
supra,
it was found that section
304(A) was not applicable, because there was nothing to suggest that
the proceedings in the magistrate's
court had not been in accordance
with justice. The court held that it nevertheless had the power to
intervene after conviction,
but before sentence, if it was satisfied
that a serious injustice would result if it did not intervene.
Relying on section 35(3)
of the Constitution of the Republic of South
Africa, Act 108 of 1996, the Court intervened and set aside the
convictions of the
accused.
[22]
The position is accordingly that even
where a matter was incorrectly referred to the High Court, the Court
would assume jurisdiction,
if the irregularity which occurred in the
lower court was of so gross a nature that the proceedings in that
court will eventually
have to be set aside.
[23]
In my view, despite the fact that
section 304A of the CPA is not applicable the court should in the
interest of justice intervene
as there was an irregular duplication
of convictions by the Court a
quo ,
which will eventually have to be set
aside. Following the principles set out above the Court has an
obligation to intervene at this
stage. To dismiss the current review
application and require accused no 2 to follow the normal procedure
by way of appeal or review
after sentence would serve no purpose,
other than to delay the inevitable, namely the setting aside of the
conviction and sentence.
[24]
The following order is made:
1.
Accused no 2's convictions on the alternative charges 31 to 53 are
set aside.
3.
The matter is remitted to the magistrate for imposition of sentence
on the remaining
charges.
R
G TOLMAY
JUDGE
OF THE HIGH COURT, PRETORIA
I
agree:
H
DE VOS
JUDGE
OF THE HIGH COURT, PRETORIA