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[2017] ZAKZPHC 19
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Naidoo v Regional Magistrate for Durban Magistrates' Court, Mr M Maharaj and Another (AR769/14) [2017] ZAKZPHC 19; 2017 (2) SACR 244 (KZP) (23 May 2017)
IN
THE HIGH COURT OF SOUTH AFRICA
KWAZULU-NATAL
DIVISION, PIETERMARITZBURG
CASE
NO. AR769/14
In
the matter between:
KEVIN
AARON
NAIDOO APPLICANT
and
THE
REGIONAL MAGISTRATE FOR DURBAN
MAGISTRATES’
COURT, MR M MAHARAJ FIRST
RESPONDENT
THE
DIRECTOR OF PUBLIC PROSECUTIONS: KZN SECOND
RESPONDENT
J U D G M E N T
STEYN
J
[1]
The applicant was charged in the regional court Durban, KwaZulu-Natal
with 171 counts of fraud alternatively 171 counts of theft.
Before the trial commenced, he applied for a permanent stay of the
prosecution against him. That application was refused
by the
first respondent who presided in the criminal trial.
[1]
The applicant hereafter launched the present application in which he
seeks the following relief:
‘
1.1
That the decision by the First Respondent dated 30
th
May 2014 under Commercial Crimes Court case number 41/1447/09 to
refuse the application by the Applicant for a permanent stay of
criminal proceedings against him, be and is hereby reviewed and set
aside;
1.2
That the criminal proceedings in the Durban Commercial Crimes Court
under case number 41/1447/09 be and is hereby permanently
stayed;
1.3
Costs of the application in the event of opposition thereto;
1.4
That the Applicant be granted such further and/or alternative relief
as the above Honourable Court may deem fit.’
[2]
The complainant in the fraud charges against the applicant and his
co-accused is a company, PG Bison (‘the complainant’),
that manufactures boards and related products at a factory in
Pietermaritzburg. The applicant, who is accused 2 before the
court
a quo
, is the proprietor of a business, Tool and
Engineering Supplies, who formerly supplied goods to the
complainant. With the
help of accused 1, who was the stock
controller and employed by the applicant, he made certain
misrepresentations unlawfully and
with the intent to defraud the
complainant of R3 130 619,37. The conduct of the
accused caused financial prejudice
to the complainant.
[3]
This application before us has a protracted history. It was set
down for hearing on 13 October 2015 but was removed from
the roll by
the parties after the presiding judges requested the parties to file
supplementary heads to address the following issues:
(i) Whether the matter was set down as
a review or an appeal; and
(ii) Whether the learned regional
magistrate had the necessary jurisdiction to entertain the
application to stay the proceedings.
Various
adjournments followed thereafter and the review was finally set down
and heard by a full court on 12 January 2017.
[4]
The abovementioned queries were raised in the light of the grounds
listed in terms of
s 22
of the
Superior Courts Act 10 of 2013
which
provides:
‘
(1)
The grounds upon which the proceedings of any Magistrates’
Court may be brought under review before a court of a Division
are -
(
a
)
absence of jurisdiction on the part of the court;
(
b
)
interest in the cause, bias, malice or corruption on the part of the
presiding judicial officer;
(
c
)
gross irregularity in the proceedings; and
(
d
)
the admission of inadmissible or incompetent evidence or the
rejection of admissible or competent evidence.’
[5]
The applicant, in his supplementary heads, responded to the queries
raised and submitted that the application is indeed a review.
Reliance was placed on this court’s inherent jurisdiction to
review proceedings of the magistrates’ court. In
the same
vein counsel on behalf of the applicant submitted that the
magistrates’ court was cloaked with the necessary jurisdiction
to hear the application and order a stay of the prosecution.
The second respondent submitted that the ruling by the first
respondent, the regional magistrate, is not reviewable since no grave
irregularities or illegalities occurred during the course
of the
proceedings. The second respondent relied on
S
v Scholtz & others
[2]
and
Director of Public
Prosecutions KwaZulu-Natal v Regional Magistrate Durban &
another
[3]
in support of its submissions.
[6]
At the outset it is necessary to deal with the procedure adopted by
the applicant in challenging the outcome of the application
before
the first respondent. The applicant launched the application
before the regional court.
Ex
facie
the record the
applicant is not challenging any irregularity committed by the
learned regional magistrate, he is however dissatisfied
with the
outcome of his application. In my view the applicant is not
seeking a review in the narrow sense since the conduct
complained of
is not an irregularity that occurred during the trial nor the
proceedings or caused an undue delay in terms of
s 342A
[4]
of the Criminal Procedure Act 51 of 1977 (‘the Act’).
The applicant in his founding affidavit reveals the
basis
for his application as being the complaint-driven investigation of
the crimes, and challenges certain conduct that he labels
as
irregularities that occurred during the investigation of the matter,
not at the trial. The applicant alleges that the
first
respondent erred in not granting the permanent stay of the
proceedings and that this court should review the ruling.
[7]
In essence the applicant’s grounds for the relief sought are
that PG Bison paid a private investigator, John Trickey,
to conduct
all the investigations into the alleged crimes. The applicant
took issue with the fact that Inspector Jason Reddy
of the
Directorate of Priority Crimes Investigations (‘the Hawks’)
was the investigating officer of the case.
The applicant avers
that he would suffer trial related prejudice should the evidence
procured by Trickey be tendered at the pending
trial. It is
further submitted by the applicant that Trickey has improperly and
unconstitutionally interfered in the prosecution
of the case.
In addition the applicant avers that the complainants ought not to
have been the investigators of their own
cases. In relation to
the ruling that was made by the first respondent, he submitted that
the first respondent was misdirected
in finding that any possible
prejudice can be evaluated by the trial court after weighing all the
relevant evidence adduced.
The applicant’s submission was
that the first respondent came to an incorrect conclusion that the
grounds for a permanent
stay of the prosecution were not met.
[8]
The first respondent, in his reasons for refusing a stay of the
proceedings, stated:
‘
In
my view, prejudice can only be measured by the trial court hearing
all relevant evidence. There is in my view in this particular
case no irreparable trial prejudice to the appellants or
insurmountable trial prejudice as was put to the Court during
argument.
Having
regard to the following, the strength of the State case, which I
indicated before, based on documentary evidence and the
Section 204
witness can be described as a strong
prima
facie
case. The
fact that the matter was set for trial on two occasions between 3
October 2011 and 27 to 31 May 2013, the delay
in the prosecution is
with the applicants in launching this application seems to me to be
an abuse of court process. In my
view it is ill conceived to
say the least. What also needs to be mentioned at this stage is
the State, for no reason or reasons
beyond me agreed to this
application when clearly the matter was ready for trial at the stage
in 2013. In my view the State
ought to have been more forceful
in having the matter to proceed. Rather than capitulating and
agreeing to this application.
A
permanent stay is a radical and far reaching remedy to bar
prosecution before the trial commences. A bar is only to be
given in a narrow range of circumstances, more so where it is
established that the accused person has suffered irreparable trial
prejudice as a result of the delay.
The
State, in particular Mr Trickey, was willing to and in fact did
assist the applicants with the documentation required for trial
purposes. The fact that the documents were kept with him is a
matter for the trial court to decide whether anything turns
on this
facts.
The
application for permanent stay for prosecution in respect of both
applicants is dismissed.’
[5]
[9]
Generally an accused person’s remedy in the case of a wrong
conclusion would be to appeal after the case has been concluded.
In principal, High Courts are reluctant to interfere with
unterminated proceedings since it leads to piecemeal finalisation of
cases. In
Lawrance v
Assistant Resident Magistrate of Johannesburg
[6]
Innes J said:
‘
This
is really an appeal from the magistrate’s decision upon the
objection, and we are not prepared to entertain appeals piecemeal.
If the magistrate finds the applicant guilty, then let him appeal,
and we shall decide the whole matter.’
[7]
[10]
The relief sought by the applicant was opposed by the second
respondent, who had filed a detailed affidavit and disputed the
averments made by the applicant as being without merit. Mr Nel,
appearing on behalf of the second respondent, firstly, submitted
that
the court
a quo
had the necessary jurisdiction to decide on the application before it
and placed reliance on
Director
of Public Prosecutions KwaZulu-Natal v Regional Magistrate,
Durban.
[8]
I shall return to this decision later in this judgment. Secondly, he
submitted that the first respondent correctly dealt
with the
applicant’s application on the merits, since the applicant had
failed to show that it would be in the ‘interests
of justice’
to grant the stay of the proceedings.
[11]
The general principle that should be followed before criminal trials
are finalised has been succinctly defined in
Walhaus
& others v Additional Magistrate, Johannesburg & another
[9]
by Ogilvie Thompson JA:
‘
If,
as appellants contend, the magistrate erred in dismissing their
exception and objection to the charge, his error was that, in
the
performance of his statutory functions, he gave a wrong decision.
The
normal remedy against a wrong decision of that kind is to appeal
after conviction
.
The practical effect of entertaining appellants’ petition would
be to bring the magistrate’s decision under
appeal at the
present, unconcluded, stage of the criminal proceedings against them
in the magistrate’s court. No statutory
provision exists
directly sanctioning such a course. … Nor, even if the
preliminary point decided against the accused
by a magistrate be
fundamental to the accused’s guilt, will a Superior Court
ordinarily interfere – whether by way
of appeal or by way of
review – before a conviction has taken place in the inferior
court … 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.’
[10]
(My
emphasis.)
The
court also qualified the general rule applicable in criminal
proceedings by stating that the ‘interests of justice’
should be recognised.
[12]
In my view the issue that needs to be decided
in
casu
is whether the first
respondent had the necessary jurisdiction
[11]
to entertain the application of a stay of the proceedings in
circumstances where the court was not specifically authorised by a
statute to do so. Counsel appearing on behalf of the applicant
had to concede, albeit reluctantly, when the matter was argued,
that
the application before the regional court was controversial
especially since it was not based on an undue delay in terms of
s
342A of the Act. The trial had not commenced so the magistrate
could not have acted in terms of the categories listed under
s
22(1)(b)
to (d) of the
Superior Courts Act. It
is therefore
unnecessary for us to deal with the review in terms of the aforesaid
provisions.
[13]
It has always been trite in our law that magistrates’ courts
are creatures of statute and, unlike the High Courts, do
not have any
inherent jurisdiction.
[12]
Magistrates are officers appointed within the public service.
[13]
In my view, magistrates’ courts are regulated by the
Magistrates’ Courts Act
[14]
and the Magistrates’ Act.
[15]
The jurisdiction of the magistrates’ courts is dependent on any
Act, granting such jurisdiction.
[16]
Since the advent of our Constitution, the proposition should be
understood in a constitutional context
[17]
since the Constitution is the supreme law of our country.
[18]
Section 170 of the Constitution should be interpreted and understood
that magistrates’ courts only have jurisdiction
if an Act of
Parliament grants them such authority.
[19]
The aforesaid does not detract from the judiciary’s
independence. The independence of all courts has been affirmed
by the Constitutional Court in
Van
Rooyen & others v The State & others (General Council of the
Bar of South Africa intervening):
[20]
‘
The
Constitution thus not only recognises that courts are independent and
impartial, but also provides important institutional protection
for
courts
.
The provisions of s 165, forming part of the Constitution that is the
supreme law, apply to all courts and judicial officers,
including
magistrates’ courts and magistrates. These provisions
bind the Judiciary and the government and are enforceable
by the
Superior Courts, including this Court.’
[21]
(My
emphasis.)
[14]
In
S v The Attorney-General
of the Western Cape; S v Regional Magistrate, Wynberg &
another
[22]
the court affirmed a magistrates’ court’s jurisdiction to
order a permanent stay of the prosecution in light of the
jurisdiction granted to the court in terms of s 342A of the Act.
Before the commencement of the interim Constitution, our
courts
recognised that criminal proceedings should be heard expeditiously
since it was an essential element of a fair trial.
Section 168
of the Act
[23]
therefore empowered the courts to refuse any adjournment if the court
deemed it not to be in the ‘interests of justice’.
In
S v Magoda
[24]
the court addressed the issue of undue delay caused by the State by
refusing a further adjournment, and in order to ensure a speedy
trial
went as far as to deem the State’s case closed in circumstances
where the State refused to close its case.
[15]
The Constitutional Court in
Sanderson
v Attorney-General, Eastern Cape
[25]
held:
‘
It
is appropriate at this juncture to make some brief observations about
the remedy sought by the appellant. Even if the evidence
he had
placed before the Court had been more damning, the relief the
appellant seeks is radical, both philosophically and
socio-politically.
Barring the prosecution before the trial
begins – and consequently without any opportunity to ascertain
the real effect of
the delay on the outcome of the case – is
far-reaching.
Indeed
it prevents the prosecution from presenting society’s complaint
against an alleged transgressor of society’s
rules of conduct.
That will seldom be warranted in the absence of significant prejudice
to the accused
.
An accused’s entitlement to relief such as this is determined
by s 7(4)(
a
)
of the interim Constitution. In interpreting that provision in
Fose
v Minister of Safety and Security
we adopted a flexible approach that is certainly inconsistent with
the availability of a single remedy in North American jurisdictions.
In our interpretation of s 7(4)(
a
)
we understood ‘appropriateness’ to require ‘suitability’
which is measured by the
extent to which a particular form of
relief
vindicates the Constitution and acts as a deterrent against further
violations of rights enshrined in chapter 3.’
[26]
(My
emphasis.)
[16]
The Constitutional Court recognised the societal interest in bringing
criminal matters to finality in a court of law.
Sachs J held in
Bothma v Els &
others
[27]
at para 41:
‘
[41]
The judgment in
Sanderson
points out that in determining reasonableness it is not only the
interests of the accused that must be borne in mind. In
making
a value judgment,
courts
must be constantly mindful of the profound social interest in
bringing a person charged with a criminal offence to trial,
and
resolving the liability of the accused
.
When a permanent stay
of prosecution is sought this societal interest will loom very
large
.’
(My
emphasis.) (Footnote omitted.)
Jurisdiction
[17]
Both the applicant and the respondents have submitted to us that the
magistrate’s court had the necessary jurisdiction
to consider
the application. Reliance was placed on the
Director
of Public Prosecutions KwaZulu-Natal v Regional Magistrate
Durban.
[28]
In the supplementary heads filed by the second respondent’s
counsel he also relied on s 170 of the Constitution,
[29]
in support of his argument on jurisdiction.
[18]
In
DPP KwaZulu-Natal v
Regional Magistrate, Durban
[30]
Hugo J and Combrink J found that the magistrates’ courts have
the necessary jurisdiction to decide on applications that lie
beyond
the scope of s 342A of the CPA. It is accordingly necessary to
re-visit the court’s reasoning and determine
whether it is
still correct, given various constitutional and procedural
developments over the past years. The court’s
findings
were for example not endorsed by the Western Cape High Court in
S
v Naidoo
.
[31]
[19]
Binns-ward J and Cloete AJ summarised the limitation of the lower
courts’ review powers in
Naidoo supra
, at para 16:
‘
Magistrates’
courts do not ordinarily enjoy jurisdiction to judicially review
administrative or constitutional action, or
to make declaratory
orders.
That
well-established limitation on their jurisdiction probably explains
why the wording of s 342A of the CPA, which does afford
a basis for a
magistrate to make an appropriate delay-related order, is limited to
delay after the commencement of proceedings
,
that is, delay which occurs while the matter is under the supervision
of the court. The appellant was in essence applying
for a
declaration that he could not be prosecuted. He was seeking a
remedy which would avert his trial, rather than one which
asserted
his right to a fair trial. The difference between the two
concepts in the context of the issue currently under consideration
is
illustrated by the fact that it does not lie within a magistrate’s
power to give a declaratory relief, while it does fall
within a
magistrate’s duty to ensure that criminal proceedings conducted
before that court are so conducted as to assure
an accused of a fair
trial. In our view the inclusion of the right to have a trial
begin without unreasonable delay as one
of the elements of a fair
trial within the ambit of s 35(3) of the Constitution does not
detract from the relevance of the aforementioned
dichotomy for
jurisdictional purposes. For the moment we are concerned not
with the content of the implicated right, but
with identifying the
forum in which the particular remedy sought in this case could
competently be granted.’
(My
emphasis.) (Footnote omitted.)
[20]
In my view s 170 of the Constitution does not confer jurisdiction on
magistrates’ courts to hear applications not authorised
by an
Act of Parliament.
[32]
Section 171 of the Constitution states that all courts function in
terms of national legislation and their rules and procedures
must be
provided for in terms of national legislation. The court in
The
DPP KwaZulu-Natal v Regional Magistrate, Durban
expanded
the jurisdiction of magistrates’ courts and relied on s 170 of
the Constitution as the authority to do so.
At 466 the court
held:
‘
The
applicant seems to have thought that s 170 of the Constitution is not
applicable to the present case because of the provision
therein that
the magistrate’s court may not enquire into or rule on the
constitutionality of legislation. That is the
very thing that
the court was not doing. It was applying legislation and
assuming it to be constitutional as indeed it had
to because it was
contained in the very Constitution itself.
The
Constitution of course, is in itself an Act of Parliament and s 170
in terms permits the magistrate’s court to decide
such a
matter
.
It
is surely within the province of any magistrate’s court even
aside from the provisions of the Constitution to ensure that
trials
heard before it are fair.’
[33]
(My
emphasis.)
[21]
The court thereafter proceeded on an analysis of s 342A of the Act
and found, correctly in my view, that the provisions of
s 342A do not
apply to events preceding the institution of criminal proceedings.
The court then considered the prejudice
suffered by an accused if
there is a delay in the proceedings and found that the question of
prejudice to an accused must take
precedence in the a consideration
of any delay.
Whilst
I am in agreement with Hugo J that
S
v Scholtz
[34]
was of no assistance to the court since the said case was decided in
terms of the provisions of the interim Constitution
[35]
which differed vastly from the final Constitution in regard to an
expeditious trial,
[36]
the interim Constitution provided for the time period to start when
an accused is charged with an offence, whilst s 35(3)(
d
)
of the Constitution now provides:
‘
Every
accused person has a right to a fair trial, which includes the right
–
(
d
)
to have their trial begin and
conclude
without reasonable delay
;’
(My emphasis.)
In
DPP KwaZulu-Natal v The Regional Magistrate, Durban supra
the
court noted the difference between the interim Constitution and
present Constitution but concluded that the two Constitutions
also
differed on the issue of the jurisdiction of courts. The court
reached this conclusion without substantiating its finding.
[22]
In my view an application for a permanent stay of the prosecution,
not provided for in s 342A of the Act, must be brought before
the
High Court that has the necessary jurisdiction to hear it.
[23]
Reverting to the facts of this application it is necessary to state,
without deciding, that the applicant’s chances are
very slim to
succeed with a review on the merits, should it be brought before
another court. Any document or any evidence
obtained in an
unconstitutional manner should be challenged before the court hearing
the matter. The presiding officer is
best placed to rule on the
evidence in accordance with recognised procedures and applicable
principles of law.
[37]
It is necessary to draw the applicant’s attention to the merits
in light of the conclusion reached on the issue of
jurisdiction.
The magistrate rightly, in my view, concluded that the trial court
would be best suited to decide on the issues
raised by the
applicant. One can only hope that the trial would not be
further delayed by instituting the same review before
the right
court.
[24]
It is trite that costs should follow the result. The success of
this review cannot be attributed to any grounds advanced
by the
applicant in his papers. The result is solely based on the
issues raised by this court. Under the circumstances
it would
be improper to mulct the second respondent with the costs of this
application. It would be far more just not
to make any
costs order.
[25]
Accordingly I have reached the conclusion that the learned regional
magistrate lacked the necessary jurisdiction to hear the
application
since s 170 of the Constitution did not vest the lower court with
jurisdiction beyond that bestowed on it by s 342A
of the Act.
[26]
The following order is made:
(i) The review succeeds and the order
issued by the first respondent is set aside.
(ii) It is directed that the
proceedings commence before another regional magistrate, without any
further delay.
(iii) There is no order made in
respect of the costs of the review.
……………………………
.
STEYN
J
……………………………
..
CHETTY
J
……………………………
.
MNGUNI
J
Application
heard on : 12 January 2017
Counsel
for the applicant : Mr M Chetty
Instructed
by : Yugendrie Maharaj & Associates
Counsel
for the respondents : Mr C Nel
Instructed
by : The Director of Public Prosecutions
Judgment
handed down on : 23 May 2017
[1]
See case 41/1447/09 of the Durban Commercial Crime Court.
[2]
1996 (2) SACR 623 (C).
[3]
2001 (2) SACR 463 (N).
[4]
Section
342A provides insofar as relevant:
‘
(1) A court
before which criminal proceedings are pending shall investigate any
delay in the completion of proceedings which appears
to the court to
be unreasonable and which could cause substantial prejudice to the
prosecution, the accused or his or her legal
adviser, the State or a
witness.
(2) In considering
the question whether any delay is unreasonable, the court shall
consider the following factors:
(a)
The duration of the delay;
(b)
the reasons advanced for the delay;
(c)
whether any person can be blamed for
the delay;
(d)
the effect of the delay on the
personal circumstances of the accused and witnesses;
(e)
the seriousness, extent or complexity
of the charge or charges;
(f)
actual or potential prejudice caused
to the State or the defence by the delay, including a weakening of
the quality of evidence,
the possible death or disappearance or
non-availability of witnesses, the loss of evidence, problems
regarding the gathering
of evidence and considerations of cost;
(g)
the effect of the delay on the
administration of justice;
(h)
the adverse effect on the interests of
the public or the victims in the event of the prosecution being
stopped or discontinued;
(i)
any other factor which in the opinion
of the court ought to be taken into account.
(3)
If the court finds that the completion of
the proceedings is being delayed unreasonably, the court may issue
any such order as
it deems fit in order to eliminate the delay and
any prejudice arising from it or to prevent further delay or
prejudice, including
an order-
(a)
refusing further postponement of the
proceedings;
(b)
granting a postponement subject to any
such conditions as the court may determine;
(c)
where the accused has not yet pleaded
to the charge, that the case be struck off the roll and the
prosecution not be resumed or
instituted
de
novo
without the written instruction of the
attorney-general;
(d)
where the accused has pleaded to the charge and the State
or the defence, as the case may be, is unable to proceed with the
case
or refuses to do so, that the proceedings be continued and
disposed of as if the case for the prosecution or the defence, as
the case may be, has been closed;
(e)
that-
(i)
the State shall pay the accused concerned
the wasted costs incurred by the accused as a result of an
unreasonable delay caused
by an officer employed by the State;
(ii)
the accused or his or her legal adviser,
as the case may be, shall pay the State the wasted costs incurred by
the State as a result
of an unreasonable delay caused by the accused
or his or her legal adviser, as the case may be; or
(f)
that the matter be referred to the
appropriate authority for an administrative investigation and
possible disciplinary action
against any person responsible for the
delay.’
[5]
See pages 295 to 296 of the transcript.
[6]
1908 TS
525.
[7]
Ibid
at 526.
[8]
2001 (2) SACR 463 (N).
[9]
1959 (3) SA 113
(A).
[10]
At 119D-F
and 120A.
[11]
See
s 22(1)(a)
of the
Superior Courts Act 10 of 2013
.
[12]
Cf
S v Scholtz & others
1996 (2) SACR 623
(C) at
626b-e, where the court held:
‘
It follows that the question
as to whether a magistrate’s court has jurisdiction to order a
stay of prosecution must be
answered by reference to Acts 32 of 1944
and 51 of 1977. Mr
Hodes
, who appeared for the
appellants, was unable to refer to any provision in either of those
Acts expressly conferring the power
to grant a stay of prosecution
on a magistrate’s court. He conceded that magistrates’
courts, being creatures
of statute, only have such powers as are
granted to them by statute but he contended that a power to stay a
prosecution must
be regarded as having been granted to magistrates’
courts by implication.
Although it is clear that
magistrates’ courts may have implied as well as expressed
authority (cf
National Party v Jamie NO and Another
1994 (3)
SA 483
(El At: WC) at 492G-493C), I cannot agree that the authority
contended for can be regarded as having been conferred by
implication
in the present case. In this regard I agree with
the view expressed by the research staff of the SA Law Commission in
para
4.33 of its
Working Paper on the Simplification of Criminal
Procedure
(Working Paper 49: Project 73) (to which Mr
Slabbert
drew our attention) that:
“
The lower courts in South
Africa … have no inherent power to prevent abuses of their
process.”’
[13]
For a discussion of Magistrates see LAWSA Vol 11 (2 ed) para 499.
[14]
Act 32 of 1944.
[15]
Act 90 of 1993.
[16]
Ndamase v Functions 4 All
2004 (5) SA 602
(SCA) para 5, reads:
‘
It is well-established that
the magistrate’s court has no jurisdiction and powers beyond
those granted by the Act (compare
Riversdale Divisional Council v
Pienaar
(1885) 3 SC 252
at 256;
Stork v Stork
(1903) 20
SC 138
at 139;
Gqalana and Others v Knoesen and Another
1980
(4) SA 119
(E) at 120;
Mason Motors (Edms) Bpk v Van Niekerk
1983 (4) SA 406
(T) at 409E-F;
Venter v Standard Bank of South
Africa
[1999] 3 All SA 278
(W) at
280i-j
) and that in
this context, jurisdiction means “the power vested in a court
by law to adjudicate upon, determine and dispose
of a matter”
(see
Ewing McDonald & Co. Ltd v M & M Products Co
[1990] ZASCA 115
;
1991 (1) SA 252
(A) at 256G-H;
Graaff-Reinet Municipality v Van
Ryneveld’s Pass Irrigation Board
1950 (2) SA 420
(A) at
424;
Spendiff NO v Kolektor (Pty) Ltd
[1992] ZASCA 18
;
1992 (2) SA 537
(A) at
551C). It is also well-established that powers may be
conferred expressly or by implication. Where the Act
is silent
on a matter the general rule is that by expressly conferring on the
magistrates’ courts’ jurisdiction in
respect of a
particular matter, the Act confers by implication the ancillary
powers necessary to give effect to that jurisdiction.
In
regard to matters specifically provided for in the Act, the Act will
govern that situation (compare
Reuters v Clarke
1922 EDL 303
at 305;
Van der Merwe v De Villiers and Another
1953 (4) SA
670
(T) at 672F-673C;
Hatfield Town Management Board v Mynfred
Poultry Farm (Pvt) Ltd
1963 (1) SA 737
(SR) at 739E-F).
The primary question to be answered therefore is whether the Act
expressly or by implication confers on
a magistrate’s court
jurisdiction to grant provisional sentence.’
Also
see LAWSA Vol 11 (2 ed) para 534 that reads:
‘
The magistrates’ courts
are creatures of statute, and have no jurisdiction beyond that
granted by the Constitution or the
statute creating them. They
have no inherent jurisdiction to develop the common law since they
have not been empowered
by the Constitution to develop the common
law, taking into account the interests of justice, but must in their
decisions apply
the provisions of the Bill of Rights, by which they
are bound, as organs of state.’
(Footnotes
omitted.)
[17]
See s 166(d) of the Constitution of the Republic of South Africa,
1996 that provides for the judicial system to be:
‘
The courts are –
(d) the Magistrates’
Courts;’
See
also
s 110
of the
Magistrates’ Courts Act 32 of 1944
.
[18]
See s 2 of the Constitution:
‘
This Constitution is the
supreme law of the Republic; law or conduct inconsistent with it is
invalid, and the obligations imposed
by it must be fulfilled.’
[19]
For a discussion of the magistrates’ courts procedures, see
LAWSA Vol 5 2 ed para 251.
[20]
2002 (5) SA 246 (CC)..
[21]
Para 18.
[22]
1999 (2)
SACR 13 (C).
[23]
Section 168 reads:
A court before which criminal
proceedings are pending, may from time to time during such
proceedings, if the court deems it necessary
or expedient, adjourn
the proceedings to any date on the terms which to the court may seem
proper and which are not inconsistent
with any provision of this
Act.’
[24]
1984 (4) SA 462 (C).
[25]
1998 (1) SACR 227 (CC).
[26]
Para 38.
[27]
2010 (2) SA 622 (CC).
[28]
Supra
.
[29]
Section 170 reads as follows:
‘
Other courts.
–
All courts other than those referred to in sections 167, 168 and 169
may decide any matter determined by an Act of Parliament,
but a
court of a status lower than the High Court of South Africa may not
enquire into or rule on the constitutionality of any
legislation or
any conduct of the President.’
[30]
See
supra
para
10
.
[31]
2012 (2) SACR 126 (WCC).
[32]
‘
170.
Magistrates’ Courts and other courts
– Magistrates’ Courts and all other courts may decide
any matter determined by an Act of Parliament, but a court
of a
status lower than a High Court may not enquire into or rule on the
constitutionality of any legislation or any conduct of
the
President.’
[33]
At 466b-d.
[34]
1996 (2) SACR 623 (C).
[35]
Interim Constitution of the Republic of South Africa Act 200 of
1993.
[36]
See s 25(3)(a) and (j) of the interim Constitution.
[37]
See
Key v Attorney-General,
Cape Provincial Division, & another
[1996] ZACC 25
;
1996 (4) SA 187
(CC) para 14:
‘
If the evidence to which the
applicant objects is tendered in criminal proceedings against him,
he will be entitled at that stage
to raise objections to its
admissibility. It will then be for the trial Judge to decide
whether the circumstances are such
that fairness requires the
evidence to be excluded. It follows that the applicant is not
entitled to an order from this
Court in these proceedings that the
evidence secured as a result of the searches and seizures will be
inadmissible in criminal
proceedings against him. Insofar as
the decision in
Park-Ross
is inconsistent with this
conclusion, it must be taken to be incorrect.’