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[2017] ZAGPPHC 128
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Botha and Others v Regional Magistrate, Springs and Others (A807/2015) [2017] ZAGPPHC 128 (28 March 2017)
IN
THE HIGH COURT OF SOUTH AFRICA
GAUTENG
DIVISION, PRETORIA
DATE:
28/3/2017
CASE
NO:A807/2015
In
the matter between:
MORNE
BOTHA
FIRST APPELLANT
ANDRIES
GREYVENSTEIN
SECOND APPELLANT
EMERALD
FIRE TRADING 76 (CC) AS
REPRESENTED
BY ADRIES GREYVENSTEIN THIRD
APPELLANT
JOHAN
VAN DER
LINDEN
FOURTH APPELLANT
MICHAEL
ALLEN
MARTIN
FIFTH APPELLANT
NORTHERN
SPARK TRADING 237 (PTY) LTD
AS
REPRESENTED BY JOHAN VAN DER LINDEN SIXTH
APPELLANT
QUINTON
HENDRIKS
SEVENTH APPELLANT
and
THE
REGIONAL MAGISTRATE, SPRINGS
MRS
B
OSWELL
FIRST RESPONDENT
THE
NATIONAL DIRECTOR OF PUBLIC
PROSECUTIONS
SECOND RESPONDENT
THE
OFFICE OF THE STATE
ATTORNEY THIRD
RESPONDENT
JUDGMENT
RANCHOD
J:
Introduction
[1]
This is an application for the review and setting aside of a ruling
of the first respondent on 21 January 2015 when certain
evidence
obtained and admissions made by the applicants during a search and
seizure operation by the police on 15 August 2006 were
declared
admissible against them. The ruling was made after a
trial-within-a-trial. The details of the evidence obtained are not
relevant for purposes of this judgment.
[2]
The accused applied for and obtained a postponement of the trial
pending the bringing of this application for a review of the
ruling.
Background
[3]
The applicants are the accused in a trial in the regional court,
Springs. They are charged with contravention of
sections 2(1)(e)
,
2
(1)(f) and
4
(1)(i) of the
Prevention of Organised Crime Act 121 of
1998
; contravention of section 143(1) of the Mining Rights Act 20 of
1967 (three counts); alternatively contravention of section 143(3)
of
the latter Act (3 counts) and three counts of contravention of
section 149 of the latter Act (three counts).
[4]
The applicants objected to the admissibility of the evidence obtained
and admissions made during the search and seizure operation,
inter
alia,
on the basis that their constitutional rights
were not explained to them prior to the operation but only much later
the same day
after it had been concluded.
[5]
The applicants aver that the interim ruling was to the effect that
the evidence obtained and admissions made during the search
and
seizure operation by the applicants were declared
finally
admissible. Hence, as I understand counsel's argument, the
accused are entitled to a review of that decision notwithstanding the
fact that the magistrate indicated that she may change the ruling if,
in the course of the trial evidence emerged which causes
the court to
question its earlier ruling. The court a quo was of the view that it
would then be entitled to overrule its earlier
decision.
[6]
At
the
end
of
the
trial
within
a
trial
the
court
a
quo
stated
that
the
evidence
obtained
and
the
admissions
made
were
provisionally
admissible.
Defence counsel objected to the provisional ruling on
the basis
that the
accused were left unsure of the case they had to meet. In
fact, the
prosecutor also held the view that the court should make a final
ruling and referred to S
v
Molimi
[1]
in which it was held by the Constitutional Court at paragraph [41]
that:
'A
timeous and unambiguous ruling on the admissibility of evidence in
criminal proceedings is, ... a procedural safeguard.'
And
at paragraph [42] c-d:
'It
is not open to question that a ruling on the admissibility of
evidence
after
the
accused
has
testified
is likely to have an adverse effect on
the accused's right to a fair trial.
...for
example, when a
ruling on admissibility is made at the end of the
case, the
accused will be left in a state of uncertainty as to the
case he is expected to meet and may be placed in a precarious
situation
of having to choose whether to adduce or challenge
evidence. ' (My underlining).
[7]
In this
case
the
trial
had
not
been
concluded.
The
State
had
not closed
its
case
as
yet.
After
much
discussion
the
learned
magistrate
decided
to
give
reasons
for
the
ruling.
Defence
counsel,
Mr Van
der
Merwe then
asked:
[2]
'Worship,
I would just enquire your ruling; does it still stand in respect of
provisional admissibility?
COURT:
No. I will make it. .. [intervenes].
Mr
Van
Der M
erwe: Finally admissibility? (sic)
COURT:
Finally admissibe, just to clarify it insofar as the defence knows
where to go from hereon forward, but still bearing in
mind that
depending on the relevance of whatever evidence is going to come out
now, there is always the chance that the court might
rule that none
of it or only some of it is admissible at the end of the day.'
[8]
It is thus apparent that the court a
quo
made its
'final' ruling subject to the proviso that if evidence emerged later
causing it to change its mind it will do SO.
The
Law
[9]
A court of appeal would be slow to exercise its review powers in
instances where the proceedings in the trial court have not
been
concluded.
[10]
In
Wahlhans
and
Others
[3]
the
Supreme
Court
of
Appeal held
that
a
Superior
Court
would
in
rare
cases
exercise its
review
power
where
the proceedings in the lower court are not finalised. It said:
"It
is true that, by virtue of its inherent power to restrain
illegalities in inferior courts, the Supreme Court may, in a
proper
case, grant relief - by way of review, interdict, or
mandamus
- against the decision of a magistrate's court given before
conviction. (See Ellis v Visser and Another,
1956 (2) SA 117
(W), and
R v Marais,
1959 (1) SA 98
(T), where most of the decisions are
collated). This, however, is a power which is to be sparingly
exercised. It is impracticable
to attempt any precise definition of
the ambit of this power; for each case must depend upon its own
circumstances. The learned
authors of Gardiner and Lansdown (61h ed.,
vol. I p.750) state:
"While
a superior court having jurisdiction in review or appeal will be slow
to exercise any power, whether by
mandamus
or
otherwise, upon the unterminated course of proceedings in a court
below, it certainly has the power to do so, and will do so
in rare
cases where grave injustice might otherwise result or where justice
might not by other means be attained. ... In general,
however, it
will hesitate to intervene, especially having regard to the effect of
such a procedure upon the continuity of
proceedings in
the court below, and to the fact
that redress by means of
review or appeal will ordinarily be
available. '
In
my judgment, that statement correctly reflects the position in
relation to unconcluded criminal proceedings in the magistrate's
courts. I would merely add two observations. The first is that, while
the attitude of the Attorney General is obviously a
material
element, his consent does not relieve the Superior Court from the
necessity of deciding whether or not the particular
case is an
appropriate one for intervention. Secondly the prejudice, inherent in
an accused's being obliged to proceed to trial,
and possible
conviction, in a magistrate's court before he is accorded an
opportunity of testing in the Supreme Court the correctness
of the
magistrate's decision overruling a preliminary, and perhaps
fundamental, contention raised by the accused, does not
per
se
necessarily justify the Supreme Court in granting relief before
conviction (see too the observation of MURRAY, J., at pp. 123
- 4 of
Ellis' case.
Supra).
As indicated earlier, each case
falls to be decided on its own facts and with due regard to the
salutary general rule that appeals
are not entertained piecemeal. "
[11]
The learned authors
Schwikkard
&
van Der
Merwe
[4]
say:
'Once
the court is satisfied that the requirements for admissibility set
out in s217(1) of the CPA [the
Criminal Procedure Act 51 of 1977
]
have been met, the confession will be admitted into evidence.
However, if during the course of the trial evidence comes to light
which causes the court to question its earlier ruling, it is entitled
to overrule its own decision. Conversely, a court may not
provisionally admit a confession on the basis that evidence may
emerge later to justify its admission.'
While
the authors say this in the context of a confession it is no doubt
equally applicable in the case of an admission.
[12]
The
purpose
of
a
trial-within-a-trial
is to
insulate
the
inquiry
relating to
voluntariness
and
the
other
requirements
of
admissibility
in
a
compartment
separate from the main trial, since it is essential that the issue of
admissibility be kept clearly distinct from the
issue of the
accused's guilt. It is a procedural device which
is
essential
to prevent
the
collision
or attenuation
of two
important rights of the accused,
both of
which
have
now found constitutional expression;
the
right to
elect
not
to
testify
at
the
close
of
the
prosecution's
case
and
the
right
to
challenge
evidence
adduced
against
him
or
her
and, thus,
to
prevent
inadmissible
evidence
from
being
received against the accused
[5]
.
[13]
It is only
the
question
of
admissibility
that
is in issue
at the
stage of
a
trial-within-a-trial.
Whether
the
statement
was
made
at
all,
or
in the
terms
alleged by the prosecution, remains to be determined
by the
court at the end of the evidence
[6]
.
[14]
However, if subsequent developments in the trial throw new light on
the voluntariness of an admission or confession the presiding
officer
may reconsider and overrule his or her decision. The court's decision
at the conclusion of the trial-within-a-trial is
interlocutory.
Should new facts bearing on the admissibility of an admission or
confession come to light at a later stage, it is
the court's duty to
reconsider the issue at that stage and not at the end of the trial,
lest an accused be cross-examined on what
later transpires to be an
inadmissible admission or confession.
[15]
It must be stressed however, that the reception of an admission or
confession is 'provisional' only in the sense that evidence
may
thereafter emerge which requires it to be excluded.
[16]
The accused may lead the same evidence as he or she adduced during
the trial-within-a-trial in order to persuade the court,
at a later
stage, that little weight should be attached to the admission or
confession because of the circumstances in which it
was made.
[17]
In
Robert
Matshikwe,
Magistrate,
Stutteheim
v Mbulelo
Clement
Erasmus
Mashuya
(case no 102/2002) the
Supreme Court of Appeal had this to say:
"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
[7]
- where
grave
injustice
threatens,
and where
intervention
is
necessary
to
attain
justice.
The
same
approach
has been
followed
under the
Constitution.
[8]
At the same time,
although
the cases in
which
intervention
has
actually
occurred
are
uncommon,
the
Court
has refused
to
define
or
limit
the
circumstances
in
which
intervention
would
be
justified. The categories remain open.
[9]
"
[18]
In the more recent case of
Basheer Sayed
and
Another v
Lovitt
N.
0
and
Another
in the Kwa-Zulu Natal High Court,
Pietermaritzburg (Case No. AR101/2011; Case No. 5582/2010) Uudgment
delivered on 25 June 2012)
Steyn J held:
'2
As a general rule, the review of unterminated criminal proceedings is
a power which is sparingly exercised and only in exceptional
circumstances. The rationale for such an approach is obvious since
the remedy against a wrong decision is to appeal after the case
has
been concluded. Steyn CJ in Ismail and Others v Additional
Magistrate, Wynberg and Another, infra has emphasised that courts
will exercise such exceptional review powers in limited
circumstances:
"As
to the second ground I should point out that it is not every failure
of justice which would amount to a gross irregularity
justifying
interference before conviction. As was pointed out in Walhaus and
Others v Additional Magistrate, Johannesburg and Another
1959 (3) SA
113
(A) at 119, where the error relied upon is no more than a wrong
decision, the practical effect of allowing an interlocutory remedial
procedure would be to bring the magistrate's decision under appeal at
a stage when no appeal lies. Although there is no sharply
defined
distinction between illegalities which will be restrained by review
before conviction on the ground of gross irregularity,
on the one
hand, and irregularities or errors which are to be dealt with on
appeal after conviction, on the other hand, the distinction
is a real
one and should be maintained.
A
Superior Court should be slow
to intervene in unterminated proceedings in a court below, and
should, generally speaking, confine
the exercise of its powers to
"rare cases where grave injustice might otherwise result or
where injustice might otherwise
result or where justice might not by
other means be attained. "
[19]
As
I
said,
the
trial
has
not
run
its
course. The
court
a
quo
may
yet
overrule
its
earlier
decision.
It would
therefore
be
premature
to
review
the court
a
quo's
decision
at this
stage.
In the
result
it is not
necessary
for
this court
to
at this
stage
embark
on
an
analysis
of
the
evidence
led
in the
trial
within-a-trial as
the
applicants
submit it
should.
Such
a
power
should be
'sparingly
exercised'
[10]
.
I
do
not
think
the
present
case
is
one
where
such
power
should be exercised at this stage.
[20]
What the applicants are in effect seeking at the unconcluded stage of
the criminal trial is an appeal against the magistrate's
ruling in
the trial within a trial. Again, as was stated in
Walhaus
and
Others
supra
it is
'a salutary rule that appeals are not entertained piecemeal'. Of
course, the applicant may even launch a review application
at the end
of the trial if so advised. The trial in the court a
quo
should
continue.
[21]
In all the circumstances the application falls to be dismissed.
________________
RANCHOD
J
JUDGE
OF THE HIGH COURT
I
AGREE
________________
MAKHOBA
AJ
ACTING
JUDGE OF THE HIGH COURT
Appearances:
Counsel
on behalf of Appellants
: Adv.
A. R Van der Merwe
Instructed
by
: Dawid M van Wyngaard
Att Inc.
Counsel
on behalf of Respondent
: Adv. J Cronje
Instructed
by
: Director of Public Prosecutions, Pretoria
Date
heard
: 27 February 2017
Date
delivered
: 28 March 2017
[1]
2008(2)
SACR
76 (CC)
[2]
Transcript: typed
p737 line
25-
p738
lines
1-9.
[3]
Wahlhans
and Others
'
Additional
Magistrate.
Johannesburg
and
Another 1959( 3 ) SA
1 13 ( A )
at 1
1911-120E
[4]
Principles
of
Evidence. Schwikkard
& van
Der Merwe
3rd Edition
348.
[5]
The South Afrcan
Law of
Evidence - Zeffert & Paizes 2
nd
Edition
p
560-561 and the authorities
cited
there.
[6]
Zeffert & Paizes
supra
at
563.
[7]
Eliovson v Magid and Another
1908 TS 558
per Innes CJ at 561; ‘The
case is a very special and peculiar one.’ In Ginsberg v
Additional Magistrate of Cape Town
1933 CPD 357
at 360 Gardiner JP
(Watermeyer and Jones JJ concurring) envisaged instances where a
magistrate tried a case in the absence of
the accused, or refused to
allow the accused legal assistance.
[8]
Levack and Others v Regional Magistrate, Wynberg and Another 2003(1)
SACR 187 (SCA) para 27.
[9]
In Ismail (above) 1963(1) SA at 6C-D Steyn CJ suggested very broadly
that a denial of justice in the sense that it deprived [accused
persons] of any right or set in train prejudicial results which they
could not avoid might justify intervention.
[10]
Wahlhans
and
Others
supra.