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[2013] ZAGPPHC 492
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Jaca v Minister of Justice and Others (A405/13) [2013] ZAGPPHC 492 (11 November 2013)
IN
THE HIGH COURT OF SOUTH AFRICA
(NORTH
GAUTENG HIGH COURT)
Case
Number: A405/13
Date:
11 November 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,
1.
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:
1.
“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
2.
Set same aside and uphold the
Applicant’s objection to the charge sheet and/or to correct
same.
3.
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.
2
.
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.”
4.
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.
8.
In
the light of all of the above, the application for review is
dismissed.
JUDGE
H. J.
FABRICIIÍS
JUDGE
OF THE HIGH COURT
I
AGREE
JUDGE
M. L. TWALA
ACTING
JUDGE OF THE HIGH COURT