S v De Beer and Another (010/06) [2006] ZASCA 80; 2006 (2) SACR 554 (SCA) (31 May 2006)

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[2006] ZASCA 80
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S v De Beer and Another (010/06) [2006] ZASCA 80; 2006 (2) SACR 554 (SCA) (31 May 2006)

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THE
SUPREME COURT OF APPEAL OF SOUTH AFRICA
Case No: 10/06
REPORTABLE
In the matter between:
DOUW
DE BEER FIRST APPELLANT
DYLLAN DOUW DE BEER
SECOND APPELLANT
and
THE
STATE
RESPONDENT
Coram: Harms, Mthiyane,
Nugent JJA, Maya et Cachalia AJJA
Heard: 19
May 2006
Delivered: 31 May 2006
Summary: A high court may not assume
jurisdiction over offences committed beyond its territorial limits.
The extension of territorial
jurisdiction of magistrates’ courts to
four kilometres beyond their boundaries in terms of
s 90(2)(a)
of the
Magistrates’ Courts Act 32 of 1944
has no bearing on the
territorial jurisdiction of high court as described in s 19(1)(a) of
the Supreme Court Act 59 of 1959.
Neutral citation:
This judgment may be referred to as
De Beer v The State
[2006]
SCA 78 (RSA)
_____________________________________________________
JUDGMENT
_____________________________________________________
CACHALIA AJA
[1] In
Ewing McDonald & Co Ltd
v M & M Products Co
1
this court said that jurisdiction is:
‘
the
power vested in a Court by law to adjudicate upon, determine and
dispose of a matter.’
The question raised in this appeal is
whether a high court has jurisdiction to try offences allegedly
committed within the area of
jurisdiction of another high court.
[2] The appellants were indicted on
murder and related charges of defeating or obstructing the
administration of justice and theft
arising from events that had
occurred on 11 April 2004 at or near the Boschkop farm. The farm is
situated in the northern district
of Gauteng Province, just outside
the magisterial district of Mankwe in the North-West Province, but
within four kilometres of its
boundary. (The significance of the four
kilometre distance will become apparent later). Because of the farm’s
location in Gauteng,
the Pretoria High Court (Transvaal Provincial
Division) has jurisdiction over the offences. This is because s
19(1)(a) of the Supreme
Court Act 59 of 1959 (the SCAct) bestows the
power upon a provincial division (in this case the Pretoria High
Court) to adjudicate
over ‘all offences triable within its area of
jurisdiction’.
2
[3] The appellants were however
indicted in the Mafikeng High Court, which is the provincial division
of the North-West Province.
This was after they had initially
appeared before the Mogwase District Court situated in the district
of Mankwe. The trial was to
proceed in the Mafikeng High Court,
sitting on circuit at Mogwase, on 20 June 2005. However on 10 May
2004 the appellants’ legal
representatives informed the Deputy
Director of Public Prosecutions (‘the DDPP’) for the North-West
Province that the Boschkop
farm fell outside the province’s
jurisdiction, in Gauteng. When the DDPP realised that this was so, he
sought a certificate from
the National Director of Public
Prosecutions (‘the NDPP’) in terms of s 111(1)(a) of the Criminal
Procedure Act 51 of 1977 (‘the
CPA’)
3
authorising the transfer of the trial from the Pretoria High Court to
the Mafikeng High Court. The section grants to the NDPP the
authority
to remove a trial to the jurisdiction of a Director of Public
Prosecutions other than the one in whose area the offence
was
committed if such removal is in the interests of justice.
4
However on 16 June 2004 the NDPP refused to grant the certificate.
Three days earlier the appellants’ legal representatives had
notified the DDPP
5
of their intention to object to the trial proceeding in the Mafikeng
High Court on the basis that the offences had allegedly been
committed outside that court’s territorial jurisdiction. Undeterred
by these events, the DDPP decided to proceed with the prosecution
in
that court.
[4] The matter came before Mogoeng JP
in the Mafikeng High Court, sitting at Mogwase. The appellants, as
they indicated they would,
pleaded in terms of s 106(1)(f) of ‘the
CPA’ that the Court had no jurisdiction to try the offences. When
such a plea is entered,
and it appears that the court does not have
jurisdiction to try the offences, as is the case in the present
matter, the court is,
in terms of s 110(2) of the CPA obliged to
‘adjourn the case to the court having jurisdiction’.
6
The learned judge however dismissed the objection. He held that on a
proper construction of s 19(1)(a) of the SCAct, read together
with
s
90(2)(a)
of the
Magistrates’ Courts Act 32 of 1944
, the Mafikeng
High Court had jurisdiction to try the offences because they were
alleged to have been committed within four kilometres
of the boundary
of the district of Mankwe. The court below also refused leave to
appeal against that finding. Leave was, however,
granted by this
court.
[5] Clearly an order made by a court
that is final and definitive in its effect is capable of being
appealed against.
7
Decisions relating to a court’s jurisdiction have traditionally
been considered appealable because they are definitive of the
question
whether a court has the competency to adjudicate upon a
matter.
8
And in
S v Basson
,
9
the Constitutional Court recently held that an order dismissing or
upholding an exception (which a plea objecting to a court’s
jurisdiction in terms of
s 106(1)(f)
is), is appealable before the
conclusion of a trial. In the present case the appeal ought to be
entertained at this stage because
it is clear that the court has no
jurisdiction and also because it is manifestly in the interests of
justice to permit an appeal
against the ruling without the appellants
first having to be exposed to the prejudice of an irregular trial.
This court therefore
has jurisdiction to entertain the appeal.
[6] Before dealing with the trial
court’s reasons for dismissing the plea that it does not have
jurisdiction to try the offences,
it is necessary to discuss the
source of the high court’s authority to try offences committed
within its territorial jurisdiction.
Section 169(b) of the
Constitution
10
confers authority on a high court to decide only those matters that
have not been assigned to another court by an Act of Parliament.
By
this provision, the position that prevailed before the Constitution
was adopted, that a high court’s jurisdiction in criminal
matters
is determined by statute,
11
is now underpinned by the Constitution. As the high court has been
created by statute, its jurisdiction cannot extend beyond what
is
conferred on it by statute.
12
In the
Ewing MacDonald
13
case, quoted above, it is emphasised that the essence of
jurisdiction is territorial:
‘
Such
power is purely territorial; it does not extend beyond the boundaries
of, or over subjects or subject-matter, not associated
with, the
Court’s ordained territory.’
Accordingly, as the learned author
Pollak
14
succinctly states, when the question relates to the jurisdiction of
the high courts of South Africa, the only question which concerns
any
division of that court is what right or authority has been granted to
it by the state. Or put another way, the question is what
statutory
authority does a high court have to adjudicate over a matter?
[7] As mentioned above, the source of
the high court’s statutory authority to adjudicate over offences
committed within its geographical
territory is the SCAct.
15
Sections 19(1)(a) and 19(3) read as follows:
‘
(1)
(a) A provincial or local division shall have jurisdiction over all
persons residing or being in and in relation to all causes
arising
and all offences triable within its area of jurisdiction and all
other matters of which it may according to law take cognizance,
and
shall, subject to the provisions of subsection (2), in addition to
any powers or jurisdiction which may be vested in it by law,
have
power-
(i) to hear and determine
appeals from all inferior courts within its area of jurisdiction;
(ii) to review the
proceedings of all such courts;
(iii) in its discretion,
and at the instance of any interested person, to enquire into and
determine any existing, future or contingent
right or obligation,
notwithstanding that such person cannot claim any relief
consequential upon the determination.
. . .
(3) The provisions of
this section shall not be construed as in any way limiting the powers
of a provincial or local division as existing
at the commencement of
this Act, or as depriving any such division of any jurisdiction which
could lawfully be exercised by it at
such commencement.’
[8] I turn to consider the first of
the court
a quo’s
reasons for dismissing the appellants’
objections to it exercising jurisdiction, ie, that it is absurd for a
lower court to exercise
jurisdiction over an offence that is
committed within its jurisdiction but to deny such jurisdiction to a
high court as a court of
first instance. The absurdity, in the view
of Mogoeng JP, stems from the fact that provincial and local
divisions have the power
to ‘to hear and determine appeals from all
inferior courts within its area of jurisdiction’ (s 19(1)(a)(i)),
‘review the proceedings
of all such courts’ (s 19(1)(a)(ii)), and
entertain committals from the regional court for sentence in terms of
the Criminal Law
Amendment Act 105 of 1977 but may not act as a court
of first instance simply because s 19(1) of the SCAct does not extend
the territorial
jurisdiction of the high court by four kilometres
beyond the province’s boundary, as s 90(2)(a) of the Magistrates’
Court Act
32 of 1944 (‘the MCA’)
16
does in respect of district and regional courts.
[9] It is important to examine the
genesis of the ‘4 km rule’. The 4 km rule predates the SCAct and
can be traced back to Ordinance
No 73 of 1830 where the Governor of
the Cape Colony extended the jurisdiction of magisterial districts to
try offences committed
within a distance of two miles of its
boundaries. It was later consolidated in the Resident Magistrate’s
Court Act 20 of 1856.
It is apparent that the purpose of the
enactment was to deal with practical problems that arose in confining
the territorial jurisdiction
of the district strictly to offences
that were committed inside the boundaries of the multiple districts
that had come into existence
in the Cape Colony at the time. After
the creation of the Union of South Africa in 1910 the law relating to
magistrates’ courts
was again consolidated by Act 32 of 1917.
Section 87 (2)(a) of that Act made provision for the two
mile rule. And when
the MCA was enacted in 1944, the rule was again
included, this time in s 90(2)(a). When South Africa changed
from imperial to
metric, the reference to two miles was changed to
four kilometres.
17
[10] As stated earlier, the areas of
jurisdiction of the provinces have been determined by statute.
18
So too the areas of jurisdiction of magisterial districts. The fact
that the legislature has extended the territorial jurisdiction
of
magistrates’ courts to four kilometres beyond their boundaries, to
overcome practical problems referred to above does not, in
my view,
carry with it any necessary implication that the area of jurisdiction
of the high court is similarly extended. On the contrary,
if the 4 km
rule was extended to the boundaries of the provinces, thus causing
areas of overlapping jurisdiction between them, serious
jurisdictional disputes would arise. There is in any event no
indication, either in the MCA or the SCAct, that the legislature
intended
the boundaries of the provinces and those of magisterial
districts to be coterminous.
19
All that s 90(2)(a) of the MCA does, is to provide for
extra-territorial jurisdiction in certain circumstances. It does not
extend the boundaries of magisterial districts. There is no reason to
read s 90(2)(a) of the MCA with s 19(1)(a) of the SCAct,
as the
court below did, so as to harmonise them. Indeed such a reading
manifestly conflicts with s 19(3) of the SCAct which prohibits
the
section from being construed in a way that deprives any provincial
division from lawfully exercising jurisdiction conferred upon
it by
statute (para 7).
[11] The court below considered it
anomalous for a provincial division to exercise appellate and review
jurisdiction over district
and regional courts within its
geographical area without exercising original jurisdiction over the
extended four kilometre area.
The appellate and review jurisdiction
that provincial divisions exercise over lower courts in terms of
s 19(1)(a)(i) and s 19(1)(a)(ii)
respectively relate
essentially to the supervisory function that provincial divisions
exercise over lower courts that operate within
their geographical
area of jurisdiction. Such jurisdiction is unrelated to and different
from the territorial jurisdiction over offences
that are committed
within the geographical area of a provincial division that is
provided for in s 19(1)(a) of the SCAct.
20
There is therefore no anomaly between s 19(1)(a) on the one
hand, and ss 19(1)(a)(i) and 19(1)(a)(ii) on the other.
[12] Turning to the high court’s
other example of an ‘anomaly’, that a high court may entertain a
committal from a regional
court for sentence but not exercise
original jurisdiction over the same offence, it is apparent that
Parliament, when enacting that
law (para 8), was concerned to limit
the penal jurisdiction of the regional court to a maximum of 15
years’ imprisonment. It was
not concerned with the territorial
jurisdiction of the high court. I am therefore unable to agree that
it is anomalous for a high
court to entertain a committal from a
regional court for sentence, but not exercise original jurisdiction
over the same offence.
[13] The second reason advanced by the
high court for assuming jurisdiction over this matter was for
‘practical considerations’.
These relate to the proximity of the
court to the scene of the crimes, its accessibility to the accused
and also members of the victims
bereaved family and the interest of
the local community in the matter. Taking such considerations into
account the high court concluded
that it was in the interests of
justice for it to assume jurisdiction over the matter. No authority
was cited to support an assumption
of jurisdiction on this, or any
other basis. Such authority as does exist is explicitly against any
such assumption of jurisdiction.
21
[14] As mentioned earlier, the
authority to transfer a case from the jurisdiction of one high court
to another vests in the NDPP by
virtue of s 111 of the CPA where the
NDPP is of the opinion that it is in the interests of justice to do
so. It is not a power vested
in the high court. Once the NDPP had
exercised its discretion not to remove the trial from the
jurisdiction of the Pretoria High
Court, that was the end of the
matter. The high court, had no discretion, as it thought it had, to
assume jurisdiction over the matter.
It was obliged, as mentioned
above, to adjourn the proceedings to a court having jurisdiction.
[15] It follows that the court below
erred in dismissing the appellants’ plea. The appeal is therefore
upheld. The order of the
court below is amended to read:
(i) The plea in terms of
s 106(1)(f)
of the
Criminal Procedure Act 51 of 1977
is upheld.
(ii) The
proceedings are adjourned in terms of
s 110(2)
of the
Criminal
Procedure Act 51 of 1977
to the Pretoria High Court.
____________
A
CACHALIA
ACTING
JUDGE OF APPEAL
CONCUR:
HARMS
JA
MTHIYANE
JA
NUGENT
JA
MAYA
AJA
1
[1990] ZASCA 115
;
1991
(1) SA 252
(A) at 256G.
2
Section
19
(1)(a) reads as follows: ‘A provincial or local division shall
have jurisdiction over . . . all offences triable within
its area of jurisdiction . . .. ’
3
Section
111
provides as follows:
(1)
(a) ‘The direction of the National Director of Public
Prosecutions . . . shall state . . . the Director in whose area of
jurisdiction the relevant . . . criminal proceedings shall be
conducted and commenced.
(b)
. . .
(2)
The court in which the proceedings commence shall have jurisdiction
to act with regard to the offence in question as if the
offence had
been committed within the area of jurisdiction of such court’.
4
See
Du Toit De Jager Paizes Skeen Van Der Merwe
Commentary on the
Criminal Procedure Act
‘16-5
’. The section is usually
applied when it is expedient to try multiple acts committed in
different jurisdictions in a single trial,
or when the witnesses may
be resident in another jurisdiction area and that it would be costly
and inconvenient to conduct the
trial in the jurisdiction of the
court where the offence was committed.
5
Section
106(1)
reads as follows: ‘When an accused pleads to a charge he
may plead –
(a)
. . .
(f)
. . . that the court has no jurisdiction to try the offence . . ..’
6
Section
110(2)
provides: ‘Where an accused pleads that the court in
question has no jurisdiction and the plea is upheld, the court shall
adjourn
the case to the court having jurisdiction.’
7
Zweni
v Minister of Law & Order
1993 (1) SA 523
(A).
8
Steytler
NO v Fitzgerald
1911 (A) 295,
303.
Liberty Life Association of Africa Ltd v Niselow
(1996)
17 ILJ
673 LAC 680A-E.
9
S
v Basson
2005 (12) BCLR 1192
(CC) para 152.
10
The
Constitution of the Republic of South Africa 108 of 1996.
11
R
v Milne and Erleigh (6)
1951
(1) SA 1
(A) p 5H and 6E;
Sefatsa & Others v
Attorney-General, Transvaal, & Another
1989 (1) SA 821
(A)
at 834E.
12
R
v Milne and Erleigh
(above).
13
See
fn 1.
14
David
Pistorius
Pollak on Jurisdiction
2ed p 2.
15
The
provincial and local divisions and their areas of jurisdiction are
set out in the First Schedule to the SCA 1959. (Sections
2 and
6(1).) Under the Interim Rationalisation of Jurisdiction of High
Courts Act, 41 of 2001, the Minister may, in terms of s
2(1)(a),
after consultation with the Judicial Services Commission alter the
area of jurisdiction for which a High Court has been
established by
including therein or revising therefrom any district or part
thereof.
16
Section
90 provides:
(1) .
. .
(2) when
any person is charged with any offence –
(a) committed
within the distance of four kilometers beyond the boundary of the
district, or of a regional division; or
(b) .
. .
(c) .
. .
Such
person may be tried by the court of that district or of the regional
division, as the case may be, as if he had been charged
with an
offence committed within the district or within the regional
division respectively.
17
Section
8(a) of the Lower Courts Amendment Act 91 of 1977 amended s 90 of
the Magistrates’ Court Act 32 of 1944 by substituting
in ss
2(a)(b) and (c) the words ‘four kilometres’ for ‘two miles’.
18
See
fn 15 above.
19
See
fn 15 above.
20
Ex
Parte Die Minister van Justisie: In Re S v De Bruin
1972
(2) 623 A at p 632A-B.
21
R
v Milne and Erleigh (6)
(see
above) p 6A-E;
S v Absalom
1989 (3) SA 154
(A) at p 164C-D.