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[2017] ZAGPPHC 485
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Director of Public Prosecutions: Gauteng (Pretoria) v Mtshali (A905/2014B) [2017] ZAGPPHC 485 (17 February 2017)
REPUBLIC
OF SOUTH AFRICA
IN
THE HIGH COURT OF SOUTH AFRICA
GAUTENG
DIVISION, PRETORIA
CASE
NUMBER: A905/2014B
NOT
REPORTABLE
NOT
OF INTEREST TO OTHER JUDGES
REVISED
In
the matter between:
THE
DIRECTOR OF PUBLIC PROSECUTIONS:
GAUTENG
(Pretoria)
APPELLANT
And
BUTI
WILLIAM
MTSHALI
RESPONDENT
JUDGMENT
KUBUSHI,
J
[1]
The respondent, Buti William Mtshali, was on 4 December 2012
convicted in the Regional Court for the Regional Division of Limpopo,
held at Mokerong in Mokopane, of two counts, namely count 1 rape and
count 2 attempted murder. He was on the same day sentenced
to five
years imprisonment suspended for a period of five years on the count
of rape and payment of a fine of R2 000 or twelve
months imprisonment
on the count of attempted murder.
[2]
The appellant applied in terms of
s 310A
of the
Criminal Procedure
Act 55 of 1977
for leave to appeal the sentence imposed by the trial
court. The application for leave to appeal was heard and granted by
De Vos
J in chambers on 20 June 2016. Leave to appeal was granted to
the Gauteng Division of the High Court of South Africa, Pretoria (the
Gauteng Division). The appellant is now before us appealing the
sentence only.
[3]
On the other hand, there are two further matters, filed by the
respondent, pending in the Limpopo Division of the High Court
of
South Africa, Polokwane (the Limpopo Division), namely, the
respondent's application for the review of the proceedings whereby
he
was found guilty of rape and attempted murder; and the respondent's
petition to the Judge President of the Limpopo Division
for leave to
appeal the conviction and condonation.
[4]
In opposition to the appellant's grounds of appeal the
respondent has raised various points
in limine,
in particular
the submission that it would be in the interest of justice that all
matters concerning the merits (including any
further appeals) must
first be finalised before the matter of sentence can be addressed. In
argument before us his counsel drove
the point that these three
matters should be heard all at the same time by the Limpopo Division
as such the appeal before us should
be removed to that Division where
it will be heard and finalised together with the two other matters
pending there.
[5]
In its heads of argument the appellant concedes that it would be
financially prudent for the appellant if the review and
appeal are
heard on the same day by the same court. However, in argument before
us, the appellant's counsel was adamant that it
was not in the
interest of justice that the appeal before us not be heard today as
it will be prejudicial to the respondent, the
complainant in this
matter and the society. Actually, according to counsel, it is not
necessary that the three matters be heard
and finalised together
since the respondent's case does not depend on the other two matters
for it to be heard. She argued vehemently
for us to proceed with the
appeal application before us.
[6]
The appellant's counsel further contents that should we make a
finding that the three matters be heard and determined by the
same
court, the appropriate court to finalise the matters is the Gauteng
Division because it has jurisdiction. The two matters
in the Limpopo
Division are the ones to be removed to the Gauteng Division, so she
argued.
[7]
Section 27 (1)
(b)
(ii)
of the Superior Courts Act 10
of 2013 (the Act) stipulates that if any proceedings have been
instituted in a Division, and it appears
to the court that such
proceedings would be more conveniently or more appropriately heard or
determined by another Division, that
court may, upon application by
any party thereto and after hearing all other parties thereto, order
such proceedings to be removed
to that other Division.
[8]
The approach of this court is that it is in the interest of justice
for the three matters, that is, the appeal on sentence,
the appeal on
conviction and the review application, be heard and determined by the
same court. It is, therefore, my view that
the appropriate court to
hear these matters is the Limpopo Division. This is so because it
will be financially convenient for the
complainant that the matter be
heard in that Division. It is also appropriate and convenient because
two of the matters are already
before that court. This I say mindful
of the appellant's argument that the respondent's review application
and petition are not
yet finalised and that a long time has elapsed
since judgment was granted in this matter. However, the two matters
in the Limpopo
Division have already been launched and the
complainant is also resident within that Division. It is prudent that
the matter be
moved there.
[9]
Without having to decide on the issue of jurisdiction, my view is
that s 27 (1)
(b)
(ii)
of the Act empowers this court
to remove the proceedings to the Limpopo Division. I am therefore
making an order in terms of the
section to remove the appeal before
us to the Limpopo Division.
[10]
In the circumstances I make the following order:
10..1
The appeal is removed from the roll.
10..2
The proceedings are removed from the Gauteng Division of the High
Court of South Africa, Pretoria to the Limpopo Division
of the High
Court of South Africa, Polokwane.
_______________________
K.M.
KUBUSHI
JUDGE
OF THE HIGH COURT
I
concur
_______________________
D.
MAKHOBA
ACTING
JUDGE OF THE HIGH COURT
Appearances:
On
behalf of the appellant: Adv: J. CRONJE
Instructed
by:
DIRECTOR
OF PUBLIC PROSECUTIONS
Presidential
Building
28
Church Square
0001
On
behalf of the respondent: MR: H.L. KLEYNVELD
Instructed
by:
KLYNVELD-GIBBENS
INC.
118A
Nelson Mandela Drive