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[2013] ZAGPPHC 330
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Jaca v Minister of Justice and Others (A405/13) [2013] ZAGPPHC 330 (11 November 2013)
I
N
THE HIGH COURT OF SOUTH AFRICA
(NORTH
GAUTENG HIGH COURT)
Case
Number: A405/13
DATE:
11/11/2013
NOT
REPORTABLE
NOT
OF INTEREST TO OTHER JUDGES
In
the matter between:
NDUMISO
JOSHUA
JACA
.........................................................................
APPLICANT
And
THE
MINISTER OF
JUSTICE
..................................................
FIRST
RESPONDENT
THE
NATIONAL DIRECTOR OF
PUBLIC
PROSECUTIONS
.................................................
SECOND
RESPONDENT
THE
PROSECUTOR IN CASE NUMBER:
14/805/12
IN THE REGIONAL COURT
MR.
SCHOLTZ THIRD RESPONDENT
THE
PRESIDING MAGISTRATE CASE NUMBER: 14/805/12 HELD AT THE REGIONAL
COURT
THE
HONOURABLE MR. TRAVERS FOURTH RESPONDENT
JUDGMENT
Fabricius
J,
This
is a review application of proceedings in the Regional Court, which
was heard together with Criminal Appeals set down at the
same time.
In this application, the accused in the Court a quo seeks the
following relief:
“
Review
the judgment of the Regional Court under case number: 14/805/12 for
the region of North Gauteng as conducted at the Regional
Court of
Pretoria under the stated case number: 14/805/12, in refusing,
alternatively not upholding the Applicant’s formal
objections
to the charge sheet, including refusing the quashing application on
the stated charges as it was filed under case
number: 14/805/12
Set
same aside and uphold the Applicant’s objection to the charge
sheet and/or to correct same.
Order
the first and/or second and/or third Respondents jointly and/or
severally, to pay Applicant’s costs...”
The
first Respondent filed a notice that he would abide by the Court’s
decision and the second and third Respondents did not
file notices to
oppose. In any event, no Answering Affidavits by the Respondents are
before me, and no Heads of Argument were filed
on their behalf.
The
Applicant’s legal representative filed written Heads of
Argument. I have also read the argument before the Court a quo,
and
the very detailed reasons of the Magistrate, the fourth Respondent.
The record is voluminous, but it is fortunately not necessary
to
refer thereto in the greatest possible detail in the light of the
relevant principles pertaining to this type of application,
which I
will briefly deal with hereunder. The Applicant was charged with a
number of counts, including fraud and various offences
under the
National Road Traffic Act 1993 of 1996, all relating to the fact
that he was in possession of a BMW motor vehicle with
false number
plates and/or number plates to which he had no lawful right of use,
or that he falsified such number plates, and
that he operated this
motor vehicle on a public road while it was not registered and
licensed, according to the Act, and that
he was further in
possession of a Harley Davidson motorcycle without lawfully
registered number plates, or that he falsified
such plates or that
he used such plates which were not applicable to the said
motorcycle. There was also a charge relating to
the unlawful use of
the operation of a blue light, which can be an offence in terms of
certain regulations of the National Road
Traffic Regulations and the
Road Traffic Act.
3.
The accused in the Court a quo, through his legal representative,
asked for further particulars in respect of the various charges
and
did in fact so to the greatest possible extent. He had also asked
that the applicable case docket be made available to him.
The request
for further particulars comprises some 14 pages. The prosecutor filed
a reply in relation to a number of the questions
asked, but in
respect of others stated that the information sought would be a
matter for evidence. An application to quash all
charges, was filed
on the basis that the State did not comply with the order of the
Court that the further particulars be replied
to, and that the
further particulars were in any event “incomplete, void of any
detail and substantial information and vague
to the point that it
does not constitute further particulars, which might allow the
accused to be able to prepare for his trial
and to plead to such
charges, prepare for his defence and properly instruct his legal
advisor and to ensure the guarantee of a
fair trial.”
There
was a very long argument before the Court a quo in this context and
everything was dissected in the greatest possible detail.
At the end
of those proceedings the learned Magistrate gave a very detailed
judgment on all the relevant aspects that needed
to be considered by
him. He refused the application. The whole question of further
particulars in the relevant context is discussed
in great detail in
Hiemstra’s Criminal Procedure, Lexis Nexis, at 14 - 21. It is
stated that the purpose of further particulars
is to inform accused
persons of the case which is to be brought against them, so that
they can prepare their defence. When considering
whether particulars
should be given, the question is whether the charge gives the
accused sufficient information about what the
State is going to
allege. This depends obviously on the nature of the offence and, in
the case of a statutory offence, on the
wording of the section of
the particular legislation. Several tests have been fashioned
throughout the decades, such as whether
i) a refusal would prejudice
the accused; ii) the giving of the particulars is in the interest of
justice; and iii) it is pertinent
to the points in issue. Ultimately
the question is whether the accused reasonably needed the
information. On appeal, the Court
will only investigate whether a
refusal of particulars prejudice the accused.
5.
The learned Magistrate dealt fully with the fact that the accused in
the Court below had asked for disclosure of the docket,
which was the
equivalent in the Civil Courts of asking for discovery. He dealt with
the charge sheet, the particularity thereof
and the answers that were
given to the request for further particulars. He also paid attention
to the fact that an accused must
not be denied his procedural rights,
and his rights to have an opportunity to properly prepare a defence,
call witnesses and test
the evidence. He also added that an accused’s
rights are not absolute, and that on the other side the Court must
look to
what would be in the interest of justice, and weigh up all
relevant factors and then make a decision. An analysis of his
detailed
judgment shows that all relevant factors were kept in mind.
The question is in any event not whether I would have ordered further
or better particulars on any specific item, but whether or not a
failure of justice occurred in the Court a quo, which would result
in
the Applicant herein not receiving a fair trial.
6.
I can find no material misdirection in the learned Magistrate’s
judgment. In my view the charge is very particular and
it would
enable any accused to know exactly what the State intends to do and
why. If there is any deficiency of a less important
nature, or any
other uncertainty, that can be dealt with during the proceedings and
no doubt the accused will be given an opportunity
to consult his
legal representative, if the need arises during the trial. In any
event, an accused has sufficient time during the
hearing, before it
commences on any specific day and after it has concluded on any
specific day, to consult his legal advisor about
the day’s
proceedings and what can be expected on the next or other days. These
are type of problems that arise everyday
in a criminal trial and it
is for the presiding officer to deal with them appropriately,
according to the law.
7.
Having regard to all of the contentions, the charges, the further
particulars, and the judgment of the Court, I cannot say that
a
failure of justice has occurred or that the learned Magistrate
committed any material misdirection either on the facts, or in
law.
To the contrary, it is my view that any reasonable accused and
reasonable legal representative will know exactly what he is
being
confronted with, what is required to be consulted about and how to
prepare a proper defence.
In
the light of all of the above, the application for review is
dismissed.
JUDGE
H. J. FfcBRIClUS
JUDGE
OF THE HIGH COURT
JUDGE
M. L. TWALA
ACTING
JUDGE OF THE HIGH COURT