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[2017] ZAKZPHC 57
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Gounden and Another v Noncebu NO and Others (AR119/17) [2017] ZAKZPHC 57; 2018 (2) SACR 186 (KZP) (15 December 2017)
IN
THE KWAZULU-NATAL HIGH COURT, PIETERMARITZBURG
REPUBLIC
OF SOUTH AFRICA
CASE
NO: AR119/17
In
the matter between:
MOGENDREN
GOUNDEN
First
Appellant
NIRUSHA
GOUNDEN
Second
Appellant
and
MS.
NONCEBU
N.O
First
Respondent
THE DIRECTOR OF PUBLIC
PROSECUTIONS
Second
Respondent
MONOGRAN
GOVENDER
Third
Respondent
ORDER
It
is ordered that:
1.
The application is dismissed;
2.
The applicants are directed to pay the second respondent’s
costs of the application jointly and severally, the one paying
the
other to be absolved.
JUDGMENT
MAHABEER
AJ (SEEGOBIN J concurring)
INTRODUCTION
[1]
The primary question that arises in this matter is whether it is
appropriate for this court, at this stage, to entertain a review
of a
ruling made by a lower court in the course of criminal proceedings
that are yet to be finalised.
BACKGROUND
[2]
The applicants are accused 1 and 2 in an ongoing criminal trial. In
2010, members of various arms of the South African Police
Services
conducted a search and seizure of their motor vehicle, residence,
farm and salon business. The applicants were initially
charged as
follows:
Count 1: dealing in,
alternatively possession of, mandrax;
Count 2: possession of
cocaine;
Count 3: possession of
ammunition; and
Count 4: corruption –
giving a benefit (to) public offices.
[3]
In 2012, the third respondent was charged along with the applicants
and the following charges were added:
Count 5: dealing in,
alternatively possession of, mandrax;
Count 6: contravention of
section 22 A 9(a)(ii) of the Medicines and Related Substances Control
Act , 1965 (read with
section 250
of the
Criminal Procedure Act,
1977
; and
Count 7: money
laundering.
[4]
The trial commenced in the Verulam Magistrates’ Court in
February 2015. The first respondent was the presiding magistrate.
At
all times the applicants were legally represented.
[5]
Early in the proceedings the applicants challenged the admissibility
of evidence seized during the 2010 search and seizure on
the basis
that it was conducted without a search warrant and thus violated
their constitutional right to privacy. The first applicant
further
alleged that he had been assaulted by police officers whilst the
search and seizure was in progress. This precipitated
a
trial-within-a-trial. On 01 March 2016, the first respondent ruled
against the applicants. The trial resumed and is currently
in
progress, the state having indicated at the outset that it intends
calling approximately 75 witnesses.
[6]
Some three months following the ruling, on 03 June 2016, the
applicants instituted this application in which the following orders
are sought:
‘
1.
Reviewing and setting aside the judgment of the first respondent
delivered on 01 March 2016;
2.
declaring the searches undertaken by the members of the South African
Police Services on 29 March 2010 ………..to
be inconsistent with the provisions of the Constitution and invalid;
3.
declaring that the evidence obtained pursuant to the aforementioned
searches are inadmissible at the trial of the appellants
and the
third respondent;
alternatively,
4.
remitting the matter to the first respondent to determine the
admissibility of the evidence obtained pursuant to the aforesaid
unlawful searches on 29 March 2010, such searches being declared to
be inconsistent with the provisions of the Constitution and
invalid;
5.
directing that any such respondent who opposes this application pay
the applicants’ costs of suit, which are to include
the costs
consequent upon the employment of two counsel;
6.
granting the applicant further and/or alternative relief.’
[7]
By the time the review was argued on 08 December 2017, the applicants
sought the following relief:
a) the review and setting
aside of the ruling;
b) an order remitting the
matter for the first respondent to determine the admissibility of the
evidence;
c) costs in the event of
opposition.
[8]
The applicants’ complaint in the review is that the first
respondent committed a gross irregularity in ruling that the
onus
to prove the existence of a right to privacy and the violation
thereof rested on the applicants. They contend that the first
respondent
conflated the
onus
in respect to the alleged
unlawful search with the
onus
in regard to the alleged
assault. In consequence of the first respondent’s finding that
the applicants had failed to discharge
the
onus
, the evidence
gathered in the course of the search was rendered admissible. The
appellants contend that the ruling should be reviewed
and set aside
because they are subject to a lengthy and expensive trial, founded on
inadmissible evidence, and they face financial
distress.
[10]
The review is premised on the provisions of
section 22
(c) and (d) of
the
Superior Courts Act, 10 of 2013
:
“
Grounds
for review of proceedings of Magistrates’ Court
(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.
(2)
This
section does not affect the provisions of any other law relating to
the review of proceedings in Magistrates’ Courts.”
[11]
The second respondent opposed the application.
[12]
The third respondent participated in the review by submitting an
affidavit and heads of argument in which he supports the case
made
out by the applicants. However, his contribution has not advanced the
matter in any way.
THE
ISSUE
[13]
The issue before us is rather crisp and is determinable on the point
of principle articulated in the introduction set out above.
It is for
the applicants to justify the interference by this court in the trial
continuing in the lower court. If they fail to
do so, then it is not
necessary to enter into the merits of the ruling under challenge. Put
differently, if the applicants do not
meet the standard to
demonstrate why the review should be determined now, before the trial
is concluded, that is the end of the
matter. If they do satisfy the
prerequisites then the court is to interrogate the admissibility of
the evidence which was placed
before the learned magistrate at the
stage of the trial-within-a-trial.
[14]
The question that arises is what standard must the applicants meet in
order to overcome this first hurdle? At a minimum, exceptional
circumstances must be shown before a high court may interfere with a
decision of the magistrate’s court given before conviction
in
accordance with this principle as it endured over the course of time
(see
Wahlaus & Others v Additional Magistrate, Johannesburg &
Another
1959 (3) SA 113
(A) at 119H-120B). In
Motata v Nair NO
& Another
2009 (1) SACR 206
(T) at 119, the test was narrowed
down even further. It was held in
Motata
that it is only
in ‘rare’ cases where grave injustice might otherwise
result or where justice might not by other means
be obtained that the
high court should exercise its inherent power to interfere. It was
explained that “… underlying
the reluctance of the
courts to interfere in unterminated proceedings in a lower court is
the undesirability of hearing appeals
or reviews piecemeal”.
THE
CASE MADE OUT BY THE APPLICANTS
[15]
In essence the applicants have put forward one reason as being an
exceptional circumstance justifying a review at this stage:
viz
that they are suffering and will continue to suffer financial
distress. A declaration of inadmissibility on the evidence would,
according to the applicants, curtail the proceedings and, by
extension, the impact on their finances. They rely on an excerpt from
S v Western Areas (Pty) Limited & Others
2005 (5) SA 214
(SCA) at [26] in support of this contention:
‘
It
is clear, however, that the general rule against piecemeal appeals in
criminal proceedings could conflict with the interests
of justice in
a particular case. The possibility of such a conflict was recognised
in
Wahlaus.
As
an instance when such conflict might arise, this Court referred in
that matter to the position where a law point is involved
which, if
decided in the accused's favour, would dispose of the criminal charge
against him or a substantial portion of it.
By that example I
understand it to be implied that there would be no trial or a
substantially shortened trial.’
This
point, it was argued, is the “silver bullet” in the
applicants’ case. In other words, so the argument goes,
interrupting the incomplete trial on a point of law relating to the
rulings made would avoid the financial distress confronting
the
applicants in the interests of justice.
[16]
We disagree with this proposition on two reasons. Firstly, the
applicants’ case is not “rare” and neither
are the
circumstances in which the ruling was made. The applicants
accordingly fail the test as defined in
Motata
. Secondly, the
following dictum in
S v Western Areas (Pty) Limited & Others
(at paragraph [27]) resonates in the context of this matter:
‘
It
is in the public interest that alleged criminals be subjected to
the criminal justice process and that the prosecution and
defence
cases be fully ventilated.’
The
criminal justice process, by its nature, means that the expense
accused persons incur when they elect to secure privately funded
representation, or losing ones’ employment, if relevant, may be
harsh but is it contrary to the interests of justice or the
public
interest? We think not. Nor is the complaint of financial distress a
point of law as envisaged in the paragraph from
S v Western Areas
(Pty) Limited & Others
, which we quoted above.
[17]
There is another reality which we must be mindful of in our
assessment of where the interests of justice lie. Should the
appellants
succeed in the scant application they have lodged, it is
likely to open the floodgates to innumerable similar reviews,
entitling
accused persons to a piecemeal determination of incomplete
criminal proceedings. This would unduly burden the courts and it
would
conflict with the accused’s and the states’ right
to a speedy trial. It would require higher courts to analyse evidence
which served before a magistrate, in a fragmented manner. These are
all undesirable consequences and would be in direct conflict
with the
interests of justice.
[18]
Accordingly, we are not persuaded that this is a matter in which this
court ought to invoke its inherent power and engage in
a review of
the ruling which the first respondent made either before or after the
trial-within-a-trial. It follows that this application
must fail.
This renders it unnecessary for this court to engage in the merits on
the correctness of the ruling.
COSTS
[19]
As mentioned, the applicants persisted in claiming costs against the
second respondent up to the stage of argument. Counsel
for the
applicants changed tack during argument by suggesting that no costs
order should be made in accordance with the general
practice in the
Constitutional Court. This submission is, in our view, flawed. The
trend against granting costs against parties
who litigate in the
furtherance of constitutional rights, pursuant to
Biowatch Trust v
Registrar, Genetic Resources
2009 (6) SA 232
(CC), should not be
open to abuse. Indeed, the Constitutional Court held that each case
must be dealt with on its own merits. (see
the analysis on costs
undertaken in
Limpopo Legal Solutions and Another v Eskom Holdings
Soc Limited
[2017] ZACC 34
at paragraphs [20] – [23]).
[20]
Ultimately, the review was ill-timed and ill-conceived from the
outset and the applicants ought not to have pursued it. Costs
must
therefore follow the result.
[21]
The third respondent’s engagement in the review was
superfluous, opportunistic and completely without merit. He is left
with the burden of bearing liability for his own costs.
ORDER
[22]
The order we make is:
a) the application is
dismissed;
b) the applicants are
directed to pay the second respondent’s costs of the
application jointly and severally, the one paying
the other to be
absolved.
______________
MAHABEER
AJ
I
agree
________________
SEEGOBIN
J
Date
of hearing : 08 December 2017
Date
delivered : 15 December 2017
Appearances
:
For
the Applicants : Mr MW Collins SC
Instructed
by : Aradhana Dharamdaw and Samlal Garbaran Attorneys
40
Price Street, Athlone Park
Amanzintoti
c/o
VA Juggernath and Associates
1204
Salmon Grove
407
Anton Lembede Street
Durban
For
the Second Respondent : Mr R Naidoo
Instructed
by : State Attorney – KwaZulu-Natal
6
th
Floor
Metlife
Building
391
Anton Lembede Street
Durban
For
the Third Respondent : Mr S Garbaran
Instructed
by : Aradhana Dharamdaw and Samlal Garbaran Attorneys
40
Price Street
Athlone
Park
Amanzintoti
c/o
VA Juggernath and Associates
1204
Salmon Grove
407
Anton Lembede Street
Durban