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2017
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[2017] ZALMPPHC 9
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S v Makwala (B391/2016) [2017] ZALMPPHC 9 (22 May 2017)
IN
THE HIGH COURT OF SOUTH AFRICA
LIMPOPO
DIVISION, POLOKWANE
REV
NO: 34/2017
REPORTABLE
OF
INTEREST TO OTHER JUDGES
REVISED.
22/5/2017
MAGISTRATE
NKOWANKOWA CASE NO: B391/2016
In
the matter of:
THE
STATE APPELLANT
And
MOLATE
PETER
MAKWALA RESPONDENT
SPECIAL
REVIEW JUDGMENT
KGANYAGO
J
[1]
The
accused is facing a charge of assault with intend to do grievous
bodily harm. It alleged that he had assaulted a complainant
who was
aged 15 years at the time of the alleged assault. It is further
alleged that he had used a panga to assault the complainant.
[2]
The accused appeared before the district magistrate at Nkowankowa. He
tendered a plea of not guilty to the charge. At the time
when the
court was administering oath on the complainant, the court realised
that the complainant was below the age of 16 years
at the time of the
alleged offence.
[3]
The trial court immediately stopped the proceedings as it is of the
view that since the offence was perpetrated against a minor
who was
under the age of 16 at the time, and that an alleged dangerous weapon
was used, namely, a panga, therefore, the provisions
of
section
51(2)(b) of Act 105 of 1997
were applicable. The trial court is
of the view that the district court does not have the requisite
jurisdiction to adjudicate
on this matter, and the proceedings be set
aside and it proceed to de novo before the Regional Court having
jurisdiction.
[4]
The comments of the magistrate were sent to the director of Public
Prosecutions Polokwane for their comments. The Deputy Director
has
submitted a detailed response of which I am indebted to them. In
their view, the proceeding should be proceeded with at the
district
court.
[5]
This is a review in terms of
section
304(4)
of
the
Criminal Procedure Act
51of
1977
(“the CPA”). Review under
section
304(4) of the CPA
is generally initiated by the trial Magistrate who doubts the
correctness of a conviction or sentence. The aim of the section is
to
correct erroneous convictions and sentence.
[6]
In
S v Steyn 2001(1) SA 1146 (CC) in paragraph 20 at 1158F-1159A
the
court observed:
“
Indeed, it
is an integral function of a superior Court to exercise an entirely
different kind of review jurisdiction over the proceedings
in the
lower courts. High courts have the power to review and correct the
proceedings of lower courts on a variety of grounds.”
[7]
In Magistrate
,
Stutterheim v Mashiya 2004(5) SA 209(SCA) in
paragraph 13 and 14 at 214F-215 D
the court observed:
“
That the
higher courts have supervisory power over the conduct of proceedings
in Magistrates’ courts in both civil and criminal
matters is
beyond doubt. This includes the power to intervene in unconcluded
proceedings. This court confirmed more than four decades
ago that the
jurisdiction exists at common law. It subsists under the
Constitution, which create a hierarchical court structure
that
distinguishes between superior and inferior court by giving the
former but not the latter jurisdiction to rule on the
constitutionality
of legislation and presidential conduct as well as
inherent power. The constitutional court has emphasised the role of
the higher
courts in ensuring quality control in the magistrates’
courts, and the importance of the High Court’s judicial
supervision
of the lower court in reviewing and correcting mistakes.
This entails, as Chaskalson CJ has observed, that the higher courts
can
supervise the manner in which the lower courts discharge their
functions. His general formulation echoes the provision of the
Criminal Procedure Act, which
provides that in criminal proceedings
subject to review in the ordinary course the High Court may amongst
many ample powers, remit
the case to the magistrate’s court
with instructions to deal with any matter in such manner as it may
think fit.
[14]
The
higher Courts, have however emphasised repeatedly that the power to
intervene in unconcluded proceedings in lower courts will
be
exercised only in cases of great rarity-where grave injustice
threatens, and where intervention is necessary to
attain
justice. The same approach has been followed under the
Constitution”
[8]
As I have already pointed out in paragraph 5 supra, section 304(4)
regulates reviews where the accused has already been convicted
or
sentenced. In this case the accused has neither been convicted nor
sentenced.
[9]
Even though the accused has not yet been convicted or sentenced, that
does not take away the supervisory powers of the higher
courts to
intervene in unconcluded matters of which is the case in the present
matter before me. However, as stated in the case
of
Magistrate,
Stutterheim vs Mashiya
supra, the power to
intervene in unconcluded proceedings in lower courts will be
exercised only in cases of great rarity, where
grave injustice
threatens, and where intervention is necessary to attain justice. It
is not given that the higher courts will intervene
in each and every
unconcluded matter in the lower courts.
[10]
In the present case, the accused has been charged with assault with
intend to do grievous bodily harm.
section 51(2)(b) of Act 105
of 1997
,
relates to discretionary minimum sentence for
certain serious offences that can be imposed by either a regional
court or high court.
The district court does not have jurisdiction to
impose a sentence that falls within the ambit of
sections
51(2)(b) of Act 105 of 1997.
[11]
However, the lower courts have jurisdiction to try matters where the
accused is facing a charge of assault with intend to do
bodily harm.
In my view, that will include also assault with intend to do grievous
bodily harm committed on a person under the
age of 16 years. It will
be only after conviction that the lower courts will not have
jurisdiction to pass a sentence that falls
within the purview of
section 51(2) of Act 105
of 1997
. In that
situation the remedy lies in
section 116(1)(a) of CPA.
[12]
Section 116(1)(a) of the CPA provides as follows:
“
If a
magistrate’s court, after conviction following on a plea of not
guilty but before sentence, is of the opinion-
(a)
That
the offence in respect of which the accused has been convicted is of
such a nature or magnitude that it merits punishment in
excess of the
jurisdiction of the magistrate court;
(b)
…
(c)
…
The court shall
stop the proceedings and commit the accused for sentence by regional
court having jurisdiction”.
[13]
It is clear that there is nothing preventing the lower courts in
trying matter of assault with intent to do bodily harm on
a person
under the age of 16 years. It is only on the sentencing stage that
the proceedings will be stopped, and the accused committed
to the
regional court living jurisdiction to sentence him/her accordingly.
[14]
In this case what the trial court has considered in arriving at the
conclusion that it does not have the requisite jurisdiction
in
relation to the charge is that the offence was perpetrated against a
minor under the age of 16 and that a dangerous weapon was
used. The
essential requirements for intervention is where grave injustice
threatens, and also where intervention is necessary
to attain
justice. The trial magistrate has failed to show that. Therefore in
my view he has followed a wrong test in stopping
the proceedings.
[15]
Under the circumstances, in my view, the district magistrate at
Nkowankowa has jurisdiction to try the accused on a charge
of assault
with intend to do grievous bodily harm even though it was allegedly
committed to a person under the age of 16 years.
[16]
In the result, I make the following order:
16.1 The district
magistrate court Nkowankowa has jurisdiction to try the accused in
this matter.
16.2 The matter is
remitted to the district magistrate court Nkowankowa to proceed with
the trial where it has stopped.
_________________________________
M.F
KGANYAGO
JUDGE
OF THE HIGH COURT
LIMPOPO
DIVISION, POLOKWANE
________________________
M.V
SEMENYA
JUDGE
OF THE HIGH COURT
LIMPOPO
DIVISION, POLOKWANE