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[2013] ZAFSHC 162
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Mosala v Magistrate Soomaroo and Another (221/2013) [2013] ZAFSHC 162 (12 September 2013)
FREE STATE HIGH
COURT, BLOEMFONTEIN
REPUBLIC OF SOUTH
AFRICA
Review No. : 221/2013
In the matter between:-
NICOLAS MOSALA
.............................................................................
Applicant
and
MAGISTRATE D. M.
SOOMAROO
...........................................
1
st
Respondent
THE STATE
...............................................................................
2
nd
Respondent
__________________________________________________________
CORAM:
LEKALE, J
et
PHALATSI, AJ
__________________________________________________________
JUDGMENT BY:
PHALATSI, AJ
__________________________________________________________
DELIVERED ON:
12 SEPTEMBER 2013
__________________________________________________________
[1] This matter came to
us by way of special review in terms of section 304(4) of the
Criminal Procedure Act, 51 of 1977 (“the
CPA”).
[2] The accused, Nicolas
Mosala, is the applicant in this application, in which he seeks this
court to rescind and set aside the
decision of Magistrate S. M.
Soomaroo, in terms of which the state was allowed to reopen its case,
after the said magistrate had
ordered that the state’s case is
deemed to have been closed in terms of section 342A(3)(d) of the CPA.
[3] The facts in this
case are briefly, the following:
The applicant appeared in
the Regional Court in Brandfort on 29 April 2013, where he pleaded
not guilty to 2 charges, being one
of murder and the other of assault
with intent to cause grievous bodily harm. Only one state witness
testified and the matter was
remanded to 28 May 2013, as no other
witnesses were available. On the said date the prosecutor who started
the matter (Mr Els),
was not present and the relief prosecutor
indicated that he was not in a position to proceed with the matter.
[3] The court then made
an order in terms of section 342A, indicating that this was a final
remand for all witnesses and the said
Mr Els. When the trial resumed
on 10 June 2013, both Mr Els and all the witnesses were not present
in court. The matter was further
postponed until 18 June 2013 in
terms of section 342A. On the said date both Mr Els and the state
witnesses were present and the
witnesses testified. Thereafter Mr Els
indicated that he would like to call a certain Chester as a witness,
but he still needed
to take his statement. The defence attorney
objected that this was a new witness but the court ordered the state
to provide the
defence with the copy of the statement as soon as it
has been taken and the court then again ordered a final remand until
17 July
2013. On the said date Mr Els was once again not present and
the relief prosecutor paged through the docket in the presence of
both the presiding officer and legal representative of the applicant
and confirmed that there was no statement of the new witness
in the
docket. The said relief prosecutor again indicated that he does not
know the matter and he was therefore not in a position
to proceed
with same. The applicant made an application that the state’s
case be deemed closed in terms of section 342A(3)(d)
of CPA, and the
state did not oppose the said application. The court then granted
such an order.
[4] The matter was
remanded in terms thereof until 22 July 2013. On the said date, Mr
Els was still not present and the prosecutor
indicated to the court
that Chester’s statement is in the docket and that it was taken
on the 7
th
of July 2013. She further stated that Chester’s
real name is Jeremiah Sera and that he was present in court on 17
July 2013.
The relief prosecutor was not aware that Chester and
Jeremiah Sera is the same person. The statement had, however, not
been given
to the applicant’s legal representative. She further
indicated that the post-mortem report was not handed in, and she
intended
to apply for re-opening of the state case on this basis.
[5] The Magistrate
indicated that she would not have given the order that she made, if
these facts were placed before her on the
17
th
of July
2013. This is surprising in that even if she had known that Chester’s
statement was available and that he (Chester)
was also in court, the
matter could still not have proceeded as Mr Els was not available. Be
that as it may, she granted the state’s
intended application to
re-open the state’s case. I say “intended application”
because that is exactly what the
prosecutor said. There was no
formal, properly motivated application brought by the state to
re-open its case, on record. The applicant’s
legal
representative then, (correctly in my view) requested the magistrate
to indicate on which aspect(s), has the state been granted
permission
to re-open its case. After a lengthy discussion, the court informed
the prosecutor that they must ensure that the state’s
witnesses, Mr Jeremiah Sera, the doctor and the police officer
(presumably the investigating officer), be present in order to
finalise the state’s case.
[5] The order made in
terms of section 342A(3)(d) is appealable in terms of section
342A(4)(b) of the CPA. This means that once
the magistrate has made
such an order, he/she becomes
fun
c
tus officio
, as the
order is a final one. The court cannot on its own revisit or rescind
the said order. The court, in its ruling, indicated
that it had
granted the section 342A(3)(d) order, without knowledge that the
witness concerned was at court on that day and that
the statement of
that witness was in the docket and that was not presented to the
defence. Had these facts been brought to its
attention on the day the
order was made, the court would not have granted the said order. On
the basis thereof, the court granted
the state’s application to
re-open its case. It is clear from this ruling that what the court
was really interested in, was
to rescind the order it had made. As I
have stated above, the court would not have been able to rescind the
said order as it was
functus officio
. To achieve its intended
aim, the court made an order that would have the same effect of
rescinding its order, under the guise
of granting the state the
application to re-open its case. I have already alluded to the fact
that the state never made a formal,
properly motivated application to
re-open its case in terms of section 150 of the CPA. No basis was
laid for such an application
and it was the court that stated that
the state had made such an application and that it was granted.
[6] It is conceivable
that, where the court has held an enquiry and made an order in terms
of section 342A(3)(d), the state can
still successfully apply for the
re-opening of its case, without the court making a mockery of the
provisions of the said section.
This is because of the fact that
there are no fixed grounds on which such an application can be
brought, as each case will depend
on its own facts and the granting
or not of the application falls within the discretion of the court.
It is obvious,
in casu
, that no discretion could be exercised
in the absence of the facts upon which the discretion could be based.
The “grounds”
mentioned are those of the court which had
never been advanced and relied upon by the state.
[7] I therefore find that
in casu
, there was not only gross irregularity, but that the
decision to re-open the state’s case is an abuse of the process
of the
law and should therefore be set aside. Indeed, even the
learned magistrate concedes this point, and I can do no better than
to
quote her verbatim:
“
I am
fully aware that this is an irregular process for the court to have
followed, but unfortunately the court feels that, in order
for the
interest of justice to be served, it has to go this way.”
See
page 147, lines 16 – 19 of the transcribed record.
I refrain from commenting
any further.
[8] In conclusion,I must
mention this fact, which, in my view is disturbing, although it does
not form part of the applicant’s
papers. According to the
charge sheet, the applicant was arrested on 28 October 2011 and his
first appearance in court is stated
as 12 March 2013. It might be
that the 12 March 2013 is the date of first appearance in the
regional court. It is, however, still
disturbing even in that event,
that it took about 16 months for the accused’s case to be
transferred from the district to
the regional court. The reason for
this lengthy delay is not apparent from the record, but I would urge
the relevant authorities
to investigate this matter, as the applicant
has been in custody since 28 October 2011, and his case has still not
been finalised.
He is still languishing in goal, some 23 months
later.
[9] In the premises, I
make the following order:
9.1. That the
magistrate’s order, dated 22 July 2013, that the state’s
case be re-opened, is hereby set aside;
9.2. That the state’s
case is and remains closed;
9.3. That the
applicant’s/accused’s case be commenced and dealt with on
the next date agreed upon for continuation of
the trial.
_________________
N. W. PHALATSI, AJ
I concur.
______________
L. J. LEKALE, J
/eb