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[2016] ZAGPPHC 826
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Essop and Another v Magistrate , Commercial Crimes Court, Pretoria (A665/2014) [2016] ZAGPPHC 826 (6 September 2016)
IN
THE HIGH COURT OF SOUTH AFRICA
GAUTENG
DIVISION, PRETORIA
CASE
NO: A665/2014
DATE:
6/9/2016
In
the matter between:
ISMAIL
ESSOP
..........................................................................................
....
First
Applicant
AHMED
HUSSAN
LIMALIA
..............................................................
......
Second
Applicant
and
THE
MAGISTRATE, COMMERCIAL CRIMES
......................................
.
First
Respondent
COURT,
PRETORIA
THE
DIRECTOR OF PUBLIC PROSECUTIONS,
..............................
Second
Respondent
NORTH
GAUTENG
JUDGEMENT
MOTHLE
J
A.
Introduction
1.
This is an application for a review of a ruling by the Regional Court
Magistrate
("the Magistrate';
of the Commercial Crimes
Court in Pretoria. The Applicants are on trial, charged with various
counts of theft of funds kept in trust
(trust funds) as well as
contravention of the provisions of the Attorneys Act 53 of 1979,
allegedly committed during their period
of practice as attorneys.
2.
The ruling which is under attack, relates to the provisional
admission of hearsay evidence during the presentation of the State's
case, on the understanding that the State would call additional
witnesses to corroborate such evidence. The State closed its case
without calling some of the witnesses.
3.The
Magistrate, ruling on the application for discharge in terms of
Section 174 of the Criminal Procedure Act, 51 of 1977
("
CPA"),
dismissed the application and stated,
amongst others, that she took into account all the evidence as at
that point.
4.The
Applicants, whose turn it is to present their defence in the criminal
trial now contend that they are unable to decide on
the evidence
necessary for their defense. They further contend that there is
uncertainty whether the Magistrate has, in her ruling
dismissing the
section 174 application, included the provisionally admitted hearsay
evidence which has not been corroborated by
the witnesses not called.
She did not specify as such in dismissing the 174 application. The
applicant now come on review to this
Court, as the Magistrate stated
that she is
functus officio
and cannot revisit her decision.
5.
The Magistrate has adjourned the criminal trial proceedings to enable
the Applicants to prosecute this review application in
the High
Court.
B.
Background
6.
Both Applicants are each charged with two counts as follows:
6.1
One
count of theft relating to general deficiencies in the trust
accounts,
alternatively
30 counts of theft for the First
Applicant. The Second Applicant is also charged with 23 alternative
counts of theft;
6.2
They are each charged with one count of contravening Section
83(9) read with Section 78(4) of the Attorneys Act, 53 of 1979, i.e.
failure to keep proper accounting records.
7.
In launching the review proceedings the Applicants in essence seek
the following relief:
7.1
That the proceedings before the Magistrate in the Commercial
Crime Court should be reviewed and set aside on the grounds that the
said Magistrate as well as the prosecution committed an irregularity;
7.2
That an order should be issued, permanently staying the
prosecution of the Applicants; and
7.3
A cost order.
8.
The hearsay evidence in this case emanates from the evidence of the
state witness Petrus Wessels Pieterse who testified on his
forensic
report. The report contained sworn statements of trust creditors of
the law firm of the Applicants. These sworn statements
were submitted
to the Fidelity Fund in support of the trust creditors' claims
against the law firm.
9.
During the presentation of Pieterse's evidence, the Applicants
objected to the admissibility of the statements as hearsay evidence.
The Magistrate, exercising her discretion in terms of section 177 of
the CPA, then ruled that the hearsay evidence is provisionally
allowed in terms of
Section 3(3)
of the
Law of Evidence Amendment
Act, 45 of 1988
.
10.
It was expected of the State to call the trust creditors whose sworn
statements appeared in the evidence of Pieterse, to testify
in
corroboration of such statements. Some of these trust creditors were
called whilst others were not called.
11.
When the State closed its case, the Magistrate did not expressly give
a final ruling in regard to the hearsay evidence that
she had
provisionally admitted. Even in her ruling on application by the
Applicants for discharge in terms of
Section 174
of the CPA, the
Magistrate did not specifically deal with the provisionally admitted
hearsay evidence, including in the instance
where the trust creditors
were not called as witnesses to corroborate Pieterse's evidence
relating to the sworn statements.
12.
In dismissing the application for discharge in terms of
Section 174
of the CPA, the Magistrate made the following remark:
"I
will give full reasons at the end of the trial, but at
this
stage I find that the State's evidence that has
been
presented
that includes also circumstantial evidence
on all
charges proves
a
prima facie case upon which
this
Court may convict the
accused."
13.
The Applicants contend that their rights to a fair trial in
terms of Section 35 of the Constitution are being infringed, in that
they are unable to prepare their defence properly and decide on the
kind of evidence they need to present in support of their case.
14.
The
prosecution on the other hand contends that on the basis of its
analysis of the evidence up to the end of the State's case,
there is
indeed a
prima facie
case which the accused must meet, based
on amongst others, circumstantial evidence. It is further contended
for the prosecution
that during the presentation of the evidence of
Pieterse, the Applicants had ample opportunity to challenge such
evidence including
that which was provisionally allowed as hearsay
and are therefore in a better position to can decide what evidence to
present,
without necessarily forcing the hand of the presiding
officer in giving its reasons at this stage. It is contended further
that
the irregularity alleged by the Applicants is not gross
irregularity which would justify the intervention of the High Court
at
this stage of the criminal proceedings.
15.
The question before this appeal court is whether in not making
a final ruling on the provisionally admitted hearsay evidence at the
end of the state's case, the Magistrate committed an irregularity
which vitiates the criminal proceedings in that court.
C.
Legal principles
16.
Section
22 of the Superior
Courts Act
10 of 2013
provides:
[1]
"22
Grounds for review of proceedings of Magistrates' Court
[sic]
(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 ofjurisdiction 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."
17.
Section 22(1) as stated above provides for the
substantive
basis on which the review should be grounded. The notice filed by
the Applicants is in terms of Rule 53 which provides for the
form
that the application should take and the
procedure
it
should follow.
18.
This
review application is grounded on section 22 (1) (d), as
it raises
the Magistrate's ruling on the admissibility of hearsay evidence.
[2]
19.
The common law principles as well as the provisions of Section
3 of the Law of Evidence Amendment Act, 45 of 1988
("Act 45
of 1988'')
relating to hearsay evidence has been considered and
dealt with in a line of court decisions and such principles are trite
and need
not be repeated.
20.
The
issue in
this appeal
is
not
on
the
admissibility of
the hearsay
evidence, but
rather
the
effect
of
provisionally
admitted hearsay evidence on the accused at the end of the state's
case. It is
an issue
that was considered in
S
v Molimi and Another
[3]
and
S
v Molimi
[4]
by
Supreme Court of Appeal
("SCA")
and
the
Constitutional Court respectively,
("Molimi')
21.
In Molimi, the appellant stood trial in the High Court with
three other persons and were convicted of various counts including
murder
and robbery. The appellant was convicted on the basis of
statements obtained from his co- accused. The admissibility of both
statements
were was contested in the trial court on the grounds that
they were not freely and voluntarily made. After a trial within a
trial,
both statements were admitted as evidence. The trial court
also admitted the statements against the appellant on the basis of
their
probative value and that it was in the interest of justice to
do so.
22.
The appellant challenged his conviction in the SCA on the
grounds that the two statements ought not to have been admitted
against
him because of their hearsay character. The SCA set aside
some of his conviction and upheld others on the basis that there was
no prejudice and the fairness of the trial has not been compromised.
23.
At the heart of the issue before court was the effect of
provisional admission of evidence by presiding officers, with a view
to
making a final ruling at the end of the entire trial and in the
final judgment. Section 177 of the CPA provides:
"
Court may defer final decision
177.
The court may at
criminal proceedings defer its
reasons for any decision
on any question raised at such
proceedings, and the
reasons so deferred shall, when given, be deemed
to
have
been
given at
the
time
of
the
proceedings."
24.
The SCA in that case expressed its view on provisional rulings
relating to admissibility of evidence thus:
"Provisional
rulings (relating to hearsay evidence)
may be
prejudicial
to
an
accused.
It
conflates the admissibility of the evidence
with its weight and
may leave an
accused
unfairly
in
a
state
of
uncertainty."
25.
This view is supported by the Constitutional Court when it
held in paragraph [42] that:
"
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 the evidence."
26.
The ruling of the Constitutional Court is that failure by a
presiding officer to timeously make a ruling on the provisionally
admitted
hearsay evidence may prejudice the accused case and offend
their right to fair trial as enshrined in Section 35(3)(i) of the
Constitution.
27.
I am thus of the view that the principle set out by the
Constitutional Court in the
Molimi
case, properly construed,
implies that in every instance where hearsay evidence has been
provisionally admitted during the State's
case, it cannot be assumed
that failure to call corroborative witnesses automatically implies
that such evidence is not admitted
or is automatically excluded. The
fact that the evidence may be admitted on a different ground such as
in the interest of justice,
makes it necessary for a presiding
officer to make a pronouncement timeously in that regard, at least
before the accused presents
his/her or its case in defence against
the admitted evidence.
28.
There is therefore a duty on the presiding officer in a
criminal trial, where a decision has been taken to provisionally
admit hearsay
evidence, to make a ruling in that regard, at least at
the end of the State's case where it would be clear that no further
evidence
will be presented to corroborate that hearsay or that the
court intends to admit such hearsay for a different reason, such as
in
the interest of justice.
D.
Evaluation of evidence
29.
It is clear
in casu
that the Magistrate did not
pronounce either way in regard to the provisionally admitted hearsay
evidence when she ruled on the
174 application for discharge. She did
not indicate whether the State, having closed its case, and having
not called all the trust
creditors to testify in support of the
provisionally admitted hearsay evidence, that such is admissible or
inadmissible. Section
3(3)(c) of Act 45 of 1988, permits the
Court to admit hearsay evidence in the interest of justice, even in
situations where
the maker of the statement has not been called to
testify and corroborate such evidence.
30.
It remains unclear on the record whether the Magistrate in
saying:
"I find that the State's evidence that has been
presented'
includes the provisionally admitted hearsay evidence
which has not been corroborated by the trust creditors.
31.
Having regard to the principle established by the
Constitutional Court in Molimi, I am of the view that the Applicants
are justified
in demanding a definite or final ruling from the
Magistrate at this stage of the proceedings. It cannot be assumed
that the provisionally
admitted hearsay evidence relating to trust
creditors who have not been called to testify is or is not admitted.
The Magistrate
may still finally admit such evidence in the interest
of justice as provided in section 3 (3) of Act 45 of 1988. However,
she has
to provide a clear ruling and give reasons to enable the
Applicants to prepare for their defense. Failure to do so will be
prejudicial
to the Applicants and may in fact infringe their
Constitutional rights to fair trial.
32.
It is my view that failure by the Magistrate to make a final
ruling on the provisionally admitted hearsay evidence is not such an
irregularity that would have the effect of vitiating the proceedings,
to the extent that the entire proceedings must be declared
invalid
and set aside. The failure to make a ruling on the provisionally
admitted hearsay evidence in this instance may have an
effect on the
Magistrate's decision on the section
174
application for discharge. It would neither justify nor sustain an
order for permanent stay of prosecution as contended by the
applicants. It is the decision on the section 174 application that
needs to be set aside and considered
de
nova
in light of the failure to pronounce finally on the provisionally
admitted hearsay evidence.
E.
ISSUE OF COSTS.
33.
In their notice of motion, the Applicants pray for a cost
order against the Magistrate as well as the prosecution. This review
application
has been set down in the Criminal Appeals Court, where in
practice the question of costs does not arise.
34.
Counsel
for the First Applicant persisted with the prayer for costs while
counsel for the Second Applicant shared the concern of
the Court that
in the Criminal Appeal Court, cost orders are in practice not
considered.
35.
In provisionally admitting the hearsay evidence, the
Magistrate did not specify on which authority she took that decision.
It seems
she was clearly acting in terms of the provision of Section
177 of the CPA However the Magistrate did not consider and follow the
Constitutional Court ruling in
Molimi.
Under these
circumstances it can hardly be argued that her conduct amounts to
gross irregularity and that she should consequently
be mulcted with a
cost order.
30.
In casu,
the Applicants have not demonstrated that the
Magistrate and/or the prosecution acted irregularly such that their
conducts in those
proceedings deserve censure in a form of a cost
order. Save to state that the Applicants have not succeeded to make
out a case
for a cost order; thus I do not propose to deal with the
question whether cost orders should be part of review proceedings
brought
in the Criminal Appeal Court. No sufficient case was made to
justify consideration and determination of this question by this
Court.
31.
In the premises I make the following order:
1.
The decision by the Magistrate to dismiss the application in terms of
Section 174 of the CPA is hereby set aside;
2.
The matter is referred back to the Magistrate to:
2.1
consider and pronounce her ruling on the admissibility or otherwise
of the provisionally admitted hearsay evidence, and, if
such hearsay
evidence is finally admitted, state fully the grounds upon which such
evidence is admitted;
2.2
reconsider her decision in terms of the application for discharge
made by the accused in terms of Section 174 of the CPA; and
2.3
Subject to her ruling, to continue the trial in the normal course.
3.
There is no order as to costs.
S.P.
MOTHLE
Judge
of the High Court
Gauteng
Division Pretoria.
I
agree
______________________
J
G RAUTENBACH
Acting
Judge of the High Court
Gauteng
Division
Pretoria.
For
the First
Applicant:
.........
Advocate J G Van Wyk
Instructed
by:
........................
Jaffer
Inc
…
.......................................................,,,,,,,,,,,,,,,,,,,,,,,,,,,,,,,,,,,,,,,,,,,,,,,,..,,
Applicant's
attorney
,,,,,,,,,,,,,,,,,,,,,,,,,,,,,,,,,,,,,,,,,,,,,.
577
Carl Street
…
.......................................................................
Pretoria
West
For
the Second Applicant
Instructed
by :
........................
Advocate
J Engelbrecht
SC
…
.........................................
..
Jaffer
Inc
…
.............................................
Applicant's
attorney
…
.............................................
577
Carl Street
…
.................................................................................................
.
Pretoria
West
For
the Respondent:
…..........
.
Adv.
G. Janse Van
Rensburg
Instructed
by:
…....................
.
Director
of Public
Prosecution Gauteng
Division
…
............................................
..
Pretoria.
[1]
This section replaces section 24 of the repealed Supreme Court Act
59 of1959.
[2]
Rowe v Assistant Magistrate, Pretoria 1925 TPD 361.
[3]
2006 (2) SACR 8 (SCA).
[4]
[2008] ZACC 2
;
2008 (3) SA 608
(CC).