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[2013] ZAGPPHC 83
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Eleveld and Others v Mabile and Another (A747 and A748/12) [2013] ZAGPPHC 83 (15 March 2013)
REPORTABLE
IN
THE HIGH COURT OF SOUTH AFRICA
(NORTH
GAUTENG, PRETORIA)
CASE
NO:A747 and A748/12
DATE:15/03/2013
In
the matter between:-
JJ.
ELEVELD
................................................................................................
1st
APPLICANT
L.
ELEVELD
…............................................................................................
2nd
APPLICANT
M.
ELEVELD
................................................................................................
3rd
APPLICANT
R.
ELEVELD
…...........................................................................................
4
th
APPLICANT
and
L
MABILE
......................................................................................................
1st
RESPONDENT
THE
DIRECTOR OF
PUBLIC
......................................................................
2nd
RESPONDENT
PROSECUTION
JUDGMENT
[1]
These Applications concern the review of orders by the First
Respondent, a Regional Magistrate sitting at Potchefstroom and
Fochville, refusing to permanently stay the criminal proceedings
pending against the Applicants.
[2]
The Second Respondent is the National Director of Public Prosecutions
who ultimately controls all prosecutions in the Republic
of South
Africa.
[3]
The review applications were brought in motion applications in which
the First, Second and Third Applicants pray for an order
in the
following terms:
“
1.
That the late bringing of this application for review be condoned
insofar same may be necessary;
AGAINST
THE FIRST RESPONDENT:
2.
That the order of the First Respondent not to grant a permanent stay
of prosecution in favour of the Applicants on 11 November
2011 under
the Regional Court case numberRC 17/2011 in the Regional Division of
North West held at Fochville be reviewed and corrected
and/or set
aside;
3.
That the order of the First Respondent be substituted with an order
that a permanent stay of prosecution be granted in favour
of the
Applicants in respect of all the case dockets forming part of the
case under Regional Court case number RC 17/2011 against
the
Applicants, which include Fochville MAS 249/06/2003, Fochville MAS
77/01/2004, Fochville MAS 176/01/2004, Fochville MAS 93/07/2003,
Fochville MAS 94/07/2003, Fochville MAS 95/07/2003 and Fochville MAS
198/08/2005;
4.
In the alternative to prayer 2:
That
the matter be determined by the Honourable Court in a manner deemed
fit by the Honourable Court;
5...................
6...................
AGAINST
THE SECOND RESPONDENT:
7.That
the Second Respondent, pursuant to an order for permanent stay of
prosecution granted in favour of the Applicants, be interdicted
and
restrained from prosecuting the Applicants now and in future in all
cases or dockets forming part of the case under Regional
Court case
number RC 17/2011 against the Applicants, which include Fochville MAS
249/06/2003, Fochville MAS 77/01/2004, Fochville
MAS 176/01/2004,
Fochville MAS 93/07/2003, Fochville MAS 94/07/2003, Fochville MAS
95/07/2003 and Fochville MAS 198/08/2005;”
[4]
The Third Applicant subsequently lodged a separate Application
praying for essentially the same relief, as did the last Applicant.
[5]
At this point I interpose to mention that the prayer for condonation
was not opposed in this Court, and condonation was consequently
granted.
[6]
During December of 2010 the Applicants were served with summonses to
appear in court on 20 January 2011. Although the Applicants
were
arraigned on separate charge sheets the matters were almost
invariably postponed to the same dates and essentially treated
as one
prosecution with individual components.
[7]
The matters were transferred to the Fochville court and on 10
February 2011 the matter was postponed in order to provide the
defence with
copies
of the police dockets, and to give them an opportunity to make
representations.
[8]
On 11 March 2011 the matters were postponed in order to provide the
defence with further particulars and, on 20 May 201 land
on 10 June
2011 the matters had to be postponed again as not all further
particulars had been provided.
[9]
I must add that the requests for further particulars that form part
of the record are comprehensive and on face value these
postponements
do not appear to be unreasonable.
[10]
The First and Second Applicants were each absent on separate days
during these initial proceedings, but I do not think that
this should
have any effect, as there was no demure in this regard in the court a
quo.
[11]The
upshot was that the prosecution was ready to set a trial date on 22
July 2011, but this prompted a series of Applications
for the
permanent stay of the prosecution. Some of these Applications were
heard on 10 February 2012 after the matter had already
been set down
for trial on 6 March 2012, less than a month in the future.
[12]
From this synopsis it should be clear that there were no inordinate
delays in the court procedures per se, and that is also
not the case
of the Applicants.
[13]
The complaint relates to delays that occurred before they were
summoned to court, and I will now turn to the relevant issues
in
order to determine whether the Applicants should be entitled to the
relief they claim.
[14]
These two matters are closely related as they follow from the same
investigation involving a number of different police dockets.
[15]
As appear from the aforesaid each Applicant lodged a separate review
Application, claiming that the First Respondent committed
a number of
irregularities when dealing with their Applications for a permanent
stay of prosecution, under two separate case numbers
in the Regional
Court. These Applications were brought in the form of Motion
proceedings in the Criminal Regional Court where they
were arraigned.
[16]
The First two Applicants in case no. 748/12 are husband and wife who
brought a separate Application for a permanent stay of
prosecution,
which was dismissed on 11 November 2011.
[17]
The Third Applicant, Accused three, in that matter in the Regional
Court is the sister in law of the First Applicant as she
is married
to his brother who is the Applicant in case no. 747/12.
[18]
To avoid confusion I will refer to the Applicant in case 747/12 as
the Fourth Applicant.
[19]
The Third and Fourth Applicants brought similar Applications on
different case numbers in the Regional Court, the one being
heard
after the other.
[20]
Although the Applicants are before Court on different case numbers
the Third and Fourth Applicant have throughout been represented
by
the same legal representative and the Arguments on behalf of all the
Applicants are essentially the same.
[21]
With the expected differences in detail the factual foundation on
which the Applicants rely is similar and the same legal principles
are applicable to all the Applications.
[22]
Although the First Respondent declined to hear the Third and Fourth
Applicants’ Applications simultaneously, their Applications
were dismissed in a single Judgment on 17 February 2012.
[23]
For reasons stated above, I intend dealing simultaneously with all
the Applications in this Judgment.
[24]
The background to these Applications is set out in the affidavits of
the different Applicants. The prosecution of the Applicants
relate to
some fifteen case dockets, some of which the brothers Eleveld were
arrested and charged with since 11 July 2004.
[25]
The charges relate to the Applicants’ business of rebuilding
and selling damaged motor vehicles. The allegation appears
to be that
either stolen motor vehicles are sold, or that parts from stolen
motor vehicles are used in the rebuilding of the vehicles.
[26]
The First and Fourth Applicants appeared in the Regional Court on
some of these dockets, and the matter was withdrawn by the
Public
Prosecutor on 12 December 2005.
[27]
This was the last time any of these Applicants appeared in court on
any of these matters until they received summonses to appear
in Court
during December 2010.
[28]
It does not appear that the Second Applicant was ever a suspect in
these matters, and the Third Respondent states that she
was not aware
that she was a suspect in the matter. The sole interaction she had
with the investigation was to provide a witness
statement.
[29]
It is common cause that a Public Prosecutor, whose identity cannot be
established, issued a Nolle Prosequi certificate on the
majority of
these dockets on 31 July 2007, indicating that the Director of Public
Prosecutions declined to prosecute on those matters.
[30]
It appears that the investigating officer, Detective Inspector Ras,
believed that he had stumbled upon a syndicate, and he
seemingly
continued referring the matter to higher authority within the
National Prosecuting Authority.
[31]
The upshot was that early in 2009 there was an exchange of
correspondence between personnel of the Prosecuting Authority and
legal representatives for the First and Second Respondents,
culminating in the summonses being issued almost two years later.
[32]
In the result a period of five years expired between the charges
being withdrawn during 2005 and reinstating the prosecution
in 2010.
[33]
The Applicants further allege that during this period very little
further evidence, if any, came to light. This contention
was not
placed in dispute.
[34]
I am prepared to accept that matters where the identity of motor
vehicles are altered, or stolen vehicle parts are used to
rebuild
vehicles could become just as complex as Fraud matters to
investigate.
[35]
It is also clear from the summary of the different trials the
prosecution envisaged, as contained in the Founding affidavits,
that
six different trials were anticipated to accommodate various
combinations of the four Applicants, as well as three other
individuals.
[36]
I am, however, of the view that the prosecuting authority should be
criticized for their tardiness, or inability to bring these
matters
to trial earlier.
[37]
Despite this criticism that can be levelled at the Prosecuting
Authority, the Applicants are still required to prove irreparable
trial related prejudice before a permanent stay of prosecution could
be ordered.
[38]
From the recent authorities it is clear that a permanent stay of
prosecution will only be granted in extraordinary circumstances
where
significant trial related prejudice to the Accused is proven.
See:
Bothma v Els and others
2010 (1) SACR 184
(CC) at par. 70 - 76 and
the authorities quoted there.
[39]
In the absence of a detailed exposition of the missing material and a
full explanation of their significance it is difficult
to see how
prejudice to the Applicants can be adequately adjudicated upon
without all the evidence being properly canvassed at
the trial.
[40]
The current Applicants broadly refer to documents that are lost
without any detailed explanation how these documents fit into
the
wider context of the trial, and without specifying to which
individual counts the prejudice would relate. The only indication
of
how the documents would relate to a specific defence refers to a
trial within a trial they envisage regarding the admissibility
of
searches and seizures. In my view the Second Respondent would be the
party who would be at a distinct disadvantage during this
trial
within a trial, in the absence of the supporting documentation.
[41]
The further contention that could be gleamed from the founding
affidavits is that the Third Applicant intends relying on a
lease
agreement, which would be difficult to substantiate after the fact.
There is, however, no elucidation as to how this aspect
would impact
on an allegation that she provided false information in order to
facilitate the registration of a motor vehicle.
[42]
The Applicants additionally rely on pecuniary burdens which would be
placed on them in order to defend themselves at the trial.
In my view
the authorities referred to above make it clear that this is not a
factor that could play a decisive, or even significant^
role in
permanently staying the prosecution.
[43]
The Applicants5 challenge to the orders by the First Respondent is
based on the allegation that several irregularities were
committed,
mainly by virtue of not holding the Second Respondents bound to the
provisions of rule 55 of the Rules Regulating the
conduct of
proceedings in the Magistrates’ Courts.
[44]
In essence the Second Respondent did not comply with the Rules
relating to motion proceedings, the Applicants attempted to
rely on.
The Second Respondent failed to file any notices or affidavits in
opposition to the Application, save for an affidavit
from the
investigating officer that was handed in from the bar at the hearing
of the Fourth Applicant’s Application.
[45]
Before the merits of this argument can be considered we must first
decide whether the First Respondent, sitting as a Lower
Court, had
the jurisdiction to review the decision by the Second Respondent, and
whether it is competent to institute civil motion
proceedings in a
Criminal Regional Court.
[46]
In argument before us and supplementary heads of argument, which the
parties requested to deliver, it was argued that their
original
application is not for a review of the second respondent’s
decision to prosecute, but that they are seeking an interdict
in
order to avoid injustice and hardship.
[47]
The Applicants state that they “are trying to prevent ... the
execution of the decision by the prosecution.”
[48]
I find this distinction to be artificial, as the Applicants admit
that the Second Respondent has the authority to institute
the
prosecution.
[49]
An interdict in terms of the
Magistrates’ Courts Act, 32 of
1944
, is defined as “a judicial process whereby a person is
ordered to refrain from doing a particular act, or is ordered to
perform
a particular act. It is a remedy of a summary and
extraordinary nature, allowed in cases where a person requires
protection against
an unlawful interference, or threatened
interference, with his rights.” (my underlining)
(See: Jones & Buckle; the Civil
Practice of the Magistrates’ Courts in South Africa, Tenth
Edition, vol. 1 at 165)
[50]
The concession by the Applicants, that the Second Respondent had the
authority to institute the prosecution, was properly made.
The Second
Respondent acted within the scope of its duties and authority, and
their actions were clearly not unlawful, and do not
stand to be
interdicted.
[51]
If on the other hand the actions of the Second Respondent were found
to be unlawful or illegal it would stand to be reviewed
and set
aside.
[52]
The Applicants rely on the term “avoid injustice and hardship”,
which would denote unfair or unjust administrative
action.
[53]
The only reference I could find for this ground for an interdict is
in relation to a High Court granting an interim order,
pending the
outcome of review proceedings.
(See:
Airoadexpress v LRTB, Durban 1986 (2) 663 (A))
[54]
That matter related to a transport company that could not proceed
with its business, pending an administrative review of a
licence the
authorities refused to reissue on slightly different terms. Although
the Supreme Court of Appeal was clearly of the
view that the licence
should be issued, they still refrained from finally interdicting the
Respondents.
[55]
I cannot agree with the Applicant's contention that a review would
not be a competent remedy if they are dissatisfied with
the Second
Respondent’s decision to institute the prosecution against
them. The Court’s powers of review are clearly
wider than an
interdict which is aimed at preventing unlawful or illegal actions.
In review Applications the Courts has a wide
discretion not only to
set aside illegal and irregular administrative action, but also where
the organ held a wrong view of the
law.
(See:
Herbstein & Van Winsen; the Civil Practice of the High Courts of
South Africa, 5th edition, vol. 2 at p. 1287)
[56]
This is exactly what the Applicants claim in relying on section 38 of
The Constitution of the Republic of South Africa. The
Applicants
claim that their right to a fair trial was infringed by the Second
Respondent’s decision to prosecute after an
inordinate delay.
The Applicants’ contention is, broadly stated, that they are
being prejudiced by the decision to prosecute,
and the insistence to
act on this decision, which is unlawful or illegal.
[57]
In the result I am not convinced that the continuing prosecution
could be divorced from the decision to persist with the prosecution,
and this concern is only capable of adjudication as a judicial review
of the Second Respondent’s resolution.
[58]
In coming to this conclusion I also have regard to the
Promotion of
Administrative Justice Act, 3 of 2000
which was brought into
operation “To give effect to the right to administrative action
that is lawful, reasonable and procedurally
fair”.
[59]
This act specifies which administrative actions are governed by the
act, and
section 1
(ff) explicitly brings “a decision to
institute or continue a prosecution” within the ambit of
judicial review.
[60]
This serves to further strengthen my view that the appropriate
procedure to challenge a continued prosecution would be a review,
and
not an interdict. This act does endow the magistrates’ courts
with jurisdiction to review administrative action in terms
of this
act, but it will not avail the Applicants as the application was not
brought in terms of the Act and the Applicants did
not comply with
the procedure and requirements set out in
section 7.1
will revert to
this act presently, relating to a further difficulty I have with the
Application.
[61]
In proceeding with the matter before the Regional Magistrate the
Applicants relied on the Judgment in Director of Public Prosecutions:
Kwa-Zulu Natal v Regional Magistrate, Durban and another
2001 (2)
SACR 463
(N) where such a procedure was condoned.
[62]
The Second Respondent argues that the above decision should not be
followed and they rely on the subsequent Judgement in S
v Naidoo 2012
(2) SACK 126 (WCC).
[63]
In Director of Public Prosecutions: Kwa-Zulu Natal v Regional
Magistrate, Durban and another the provisions of section 170
of The
Constitution of the Republic of South Africa was interpreted as an
empowering provision.
[64]
The Judgment in S v Naidoo differs with this interpretation and
convincingly interprets this section as a restrictive clause.
[65]
Without repeating the complete Judgement and, to avoid undue
prolixity, I agree that the preceding sections of the The
Constitution
bestow wide powers on the Higher Courts, while providing
for the extent to which those powers might be restricted, which
should
be the guiding factor in interpreting section 170.
[66]
Section 170 provides that the Magistrates Courts “may decide
any matter determined by an act of Parliament” (My
underlining)
which accord with the trite principle that Magistrates Courts are
creatures of statute.
[67]
Read with section 173 of The Constitution which bestows the Higher
Courts with inherent Jurisdiction, and not the lower Courts,
it must
be clear that section 170 is intended to stipulate that the Lower
Courts’ Jurisdiction is limited to what is statutorily
authorized.
[68]
In addition section 19 of the Supreme Court Act, 59 of 1959 similarly
bestow wide powers on the High Courts while the
Magistrates Courts
Act, 32 of 1944
does not contain similar provisions.
[69]
The Magistrates Courts derive their powers to prevent undue delays
from
section 342A
of the
Criminal Procedure Act, 51 of 1977
which
does not provide for a permanent stay of prosecution. The strongest
measure the Magistrate is empowered to take before the
Accused has
pleaded, and therefore entitled to a final judgement in the ordinary
course of the proceedings, would be an order striking
the matter of
the roll with the proviso that a further prosecution may not be
instituted without the written consent of the Director
of Public
Prosecutions. This is a far cry from finally interdicting the
Prosecuting Authority from prosecuting an Accused person.
[70]
I am further in agreement with the Naidoo Judgment that the
Magistrate would, and should have the authority to consider any
manner of trial related prejudice when evaluating the evidence, and
ameliorating it with the appropriate order which could include
ruling
evidence inadmissible or an acquittal.
[71]
The Trial Court would in fact be in the best position to evaluate
this issue, in the absence of detailed, unambiguous and uncontested
facts clearly manifesting the nature and extent of prejudice.
[72]
I am therefore of the view that the First Respondent did not have the
authority to grant a permanent stay of prosecution.
[73]
I further find the process the Applicants followed, in bringing civil
motion proceedings before a Criminal Regional Court incompetent.
The
Criminal Regional Court does not have the jurisdiction to entertain
Civil Applications.
[74]
Section 2(l)(f) and (g) of the Magistrates Court Act provides for the
Minister of Justice and Constitutional Development’s
powers to
establish Courts, and these sections clearly differentiate between
civil and criminal courts. This is so despite the
word “or”
separating the sub sections. Clearly the Minister has the authority
to demarcate an individual court to act
as both a criminal and civil
court, depending on operational requirements. There is a clear
distinction between the two subsections,
which makes the suggestion
that a court established as a criminal court could simply function as
a civil court preposterous.
[75]
This reasoning becomes irrefutable having regard to
section 12
(6),
(7), and (8) of the
Magistrates’ Courts Act which
requires a
Regional Court Magistrate’s name to be entered on a list
further demarcating his or her functions in terms of
section 29
(1)
or
29
(IB), regulating which causes of action the Regional Magistrate
may adjudicate on.
12(6)
Only a magistrate of a regional division whose name appears on the
list referred to in subsection (7), may adjudicate on civil
disputes
contemplated in
section 29
(1) or
29
(IB), in accordance with the
criteria set out in subsection (8).
(7)
The Magistrates Commission must enter the names of magistrates of
regional divisions on a list of magistrates who may adjudicate
on
civil disputes contemplated in-
(a)
section 29
(1) or
29
(IB); or
(b)
both
sections 29
(1) and
29
(IB).
(8)
The Magistrates Commission may only enter the name of a magistrate on
the list in terms of subsection (7) if one or more places
have been
appointed in terms of
section 2
(1) (iA) within the regional division
in respect of which the magistrate in question had been appointed for
the adjudication of
civil disputes, and-
(a)
the head of the South African Judicial Education Institute has issued
a duly signed certificate that the magistrate has successfully
completed an appropriate training course in the adjudication of civil
disputes; or
(b)
the Magistrates Commission is satisfied that, before the
establishment of the Institute referred to in paragraph (a), the
magistrate
has successfully completed an appropriate training course
in the adjudication of civil disputes; or
(c)
the Magistrates Commission is satisfied that the magistrate, on
account of previous experience, has suitable knowledge of, and
expertise in, civil litigation matters to preside over the
adjudication of civil disputes contemplated in
section 29
(1) or
29
(IB) or both
sections 29
(1) and
29
(IB).
Only
a Regional Magistrate whose name was placed on the list by the
Magistrates’ Commission may adjudicate in Civil Matters,
determined by the proviso, that the matters they are permitted to
hear are qualified. Before a Regional Magistrate’s name
may be
placed on the list it has to be established through specified
mechanisms that he or she is sufficiently qualified and experienced
to deal with civil matters.
[76]
The Minister would evidently only be entitled to appoint a Regional
Magistrate to adjudicate in civil matters they are eligible
to hear
in terms of these sections.
[77]
At this stage I have to pause and consider the impact of the
Promotion of Administrative Justice Act on
this reasoning.
Section 9A
provides for similar, but separate, requirements for training and
designation of magistrates to adjudicate these matters, and therefore
this act would similarly not avail the Applicants.
[78]
Moreover, I doubt that it would be competent for a court to review a
matter that is currently under consideration in another
court, with
equal or higher status, and in my view applications for permanent
stay of prosecution should be the exclusive domain
of the Superior
Courts.
[79]
Once the Minister has demarcated the function of a Court, I do not
see how a party to the proceedings could be entitled to
transform the
nature of the court and proceedings.
[80]
The irregularities the Applicants rely on in this Application are
apposite in this regard and probably occurred as a result
of the
foreign procedure they introduced into a Criminal Court. From the
manner in which the Trial Court adjudicated the issues
in the present
case, and the failure to apply the rules regarding factual disputes
in motion proceedings laid down in Plascon-Evans
Paints LTD v van
Riebeeck Paints (PTY) LTD
[1984] ZASCA 51
;
1984 (3) SA 623
(A), it is evident that the
Regional Magistrate did not possess the prerequisite experience and
training to adjudicate Civil matters.
[81]
This position is even more intolerable when considering that the
prosecutors in the lower courts are appointed in terms of
section 16
of the
National Prosecuting Authority Act, 32 of 1998
which provides
for academic qualifications, and does not require a prosecutor to be
a member of the organized professions, being
Attorneys or Advocates.
The question arises whether the introduction of such civil
proceedings could result in a prosecutor suddenly
not having locus
standi in his own court. At the very least Prosecutors who are
experts in criminal litigation might be at a distinct
disadvantage if
they are suddenly confronted with a procedure they are not ordinarily
required to be experienced in. This is evident
from the current
Prosecutor’s failure to file a Notice of Intention to Oppose
and opposing affidavits.
[82]
Although the first two Applicants specifically state that they do not
rely on
section 342A
, the Third and Fourth Applicants did rely on
these provisions and the First Respondent properly, and correctly,
dealt with these
provisions as far as there were limited delays
during the course of the Court proceedings, and the Prosecution was
in a position
to arrange a trial date.
[83]
The remedies provided in
Section 342A
are not available for pre-trial
delays, although I am of the view that a Presiding officer would be
entitled to take cognisance
of such delays when adjudicating on
delays encountered during the trial.
See:
Director of Public Prosecutions: Kwa-Zulu Natal v Regional
Magistrate, Durban and another
2001 (2) SACR 463
(N) , S v Naidoo
2012 (2) SACR 126
(WCC)
[84]
In the result I am of the view that First Respondent was correct in
refusing to grant a permanent stay of prosecution and propose
the
following order:
The
Applications by all four Applicants are dismissed.
H.L.
Alberts
(Acting
Judge of the North Gauteng High Court)
I
agree, and it is so ordered
V.V
Tlhapi
(Judge
of the North Gauteng High Court)