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[2013] ZAKZDHC 9
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S v Singh (DR 157/13) [2013] ZAKZDHC 9; 2013 (2) SACR 372 (KZD) (5 April 2013)
REPORTABLE
IN THE KWAZULU-NATAL
HIGH COURT DURBAN
REPUBLIC OF SOUTH
AFRICA
CASE NO : DR 157/13
In
the matter between:
THE
STATE
and
PRAVESH SINGH
....................................................................
Accused
REVIEW JUDGMENT
_____________________________________________________
KHALLIL AJ
[1] This matter comes on
review ostensibly in terms of Section 304(4) of the Criminal
Procedure Act 51 of 1977 (hereinafter referred
to as the CPA).
[2]
The accused was convicted of negligent driving in the Magistrate’s
Court, Pinetown on the 21
st
June
2012 and sentenced to pay a fine of R4000.00 or in default of payment
to undergo (4) months imprisonment.
1
[3] It appears that the
Presiding Magistrate’s decision to submit the matter for
review, purportedly on the basis of the provisions
of Section 304(4)
of the CPA, was prompted by counsel who represented the accused at
trial.
IS THE MATTER
REVIEWABLE IN TERMS OF SECTION 304(4) OF THE CPA?
(4) In
a letter dated 30 June 2012 addressed to the
“
Chief
Magistrate, Pinetown”
,
2
counsel
who represented the accused at trial, raised concerns regarding the
conduct of the Presiding Magistrate during the trial.
These concerns
included allegations of gross irregularity, bias, admission of
inadmissible evidence and unnecessary delays in the
finalization of
the case.
[5] In paragraph 9 of the
aforesaid correspondence, counsel concluded:
“
In my
opinion, a miscarriage of justice has taken place and looking at some
of the irregularities that I have pointed out, it is
in the interest
of justice and the accused’s right to a fair trial that a
request for the transcript is called for and the
matter be submitted
on special review.”
[6] Despite the fact that
the accused was legally represented throughout the trial by counsel,
no application for leave to appeal
was made against the conviction
and/or sentence.
[7]
The sentence was also not subject to review in the ordinary course as
the accused was legally represented.
3
[8]
Subsequent correspondence and e-mails were exchanged between counsel
for the accused and the Presiding Magistrate, the net result
of which
was the procurement of the transcript of the proceedings at the
expense of the Department of Justice & Constitutional
Development
4
and
the submission of a copy of the Record to counsel for the accused.
5
[9] I
digress to mention that counsel in acting as alluded to in paragraph
[8] supra, appeared to have carried out the functions
of an
attorney.
6
[10] The allegations by
counsel for the accused are categorically denied by the Magistrate in
a written response dated 8 March 2013
addressed to both the Registrar
of the High Court and counsel for the accused. I may add that the
concerns raised by counsel, for
the most part, if not entirely, are
not apparent on the record.
[11] Notwithstanding his
aforesaid denial of the allegations and view, in essence, that the
proceedings were indeed in accordance
with justice, the Learned
Magistrate still caused the matter to be sent on special review.
[12]
The question which arises is whether the Magistrate had, in the
circumstances, been entitled to submit the matter for review
in this
fashion. The provisions of Section 304(4) of the CPA
7
read
as follows:
“
If in any
criminal case in which a Magistrate’s Court has imposed a
sentence which is not subject to review in the ordinary
course in
terms of Section 302 or in which a Regional Court has imposed any
sentence, it is brought to the notice of the Provincial
or Local
Division having jurisdiction or any Judge thereof that the
proceedings in which the sentence was imposed were not in accordance
with justice, such Judge shall have the same powers in respect of
such proceedings as if the record thereof had been laid before
such
court or Judge in terms of Section 303 or this section.”
[13] A
Magistrate who approaches a High Court with a view of having
proceedings reviewed in terms of Section 304(4) of the CPA should,
at
the least, specifically submit that the proceedings were not in
accordance with justice.
8
This
was not done in the present case. I can only assume that the
Magistrate in so acting succumbed to pressure from counsel for
the
accused as is apparent from the exchange of correspondence.
[14]
The Magistrate’s decision in such circumstances is not only
unfortunate but also disturbing. In effect he allowed himself
to be
used as an agent for the accused in not only submitting the matter on
special review but also in procuring the transcript
of the
proceedings at State expense and supplying the defence with a copy of
same. In my view this is an abuse of the review process
as
contemplated in Section 304(4) of the CPA. Such conduct if
countenanced could have a disastrous effect on the general
administration
of justice, financially and otherwise. Magistrates
should be mindful that Courts are not misused for cheap appeals in
the guise
of reviews based on Section 304(4) of the CPA.
9
[15]
The practice of Magistrates submitting matters on special review in
the absence of any grounds must also be discouraged. Section
304(4)
of the CPA was not conceived as a method whereby practitioners, in
cases where there is no automatic review, can get the
benefit of an
appeal or review. The Courts will only exercise its powers thereunder
in proper circumstances.
10
Serious
allegations are made against a Magistrate, allegations which are not
under oath and no specific reference is made to the
record consisting
of 190 pages insofar as the allegations are concerned nor have I had
the benefit of hearing the State.
[16]
What should have been done was for the accused to apply for leave to
appeal or institute review proceedings if he was dissatisfied.
In
that event the Court would not have to adjudicate on informal
allegations made in a letter from counsel for the accused and
which
are denied by the Presiding Magistrate. It would be improper for a
review court to deal with such a case in this informal
manner and it
would indeed lead to an untenable situation if the door were to be
opened for the review of matters in this haphazard
fashion.
11
[17] I also think it
improper for Magistrates to explain their findings to legal
representatives (save as prescribed in law) or
become involved in
correspondence with practitioners regarding their findings once they
have disposed of a case. This has the potential
of bringing the
administration of justice into disrepute.
ARE THE PROCEEDINGS
NONETHELESS REVIEWABLE IN TERMS OF SECTION 24 OF THE SUPREME COURT
ACT 59 OF 1959?
[18] At best for the
accused, the allegations raised on his behalf might constitute
grounds for a review in terms of Section 24
of the Supreme Court Act.
[19]
This section enables proceedings in inferior courts in respect of
which there is a complainant against the method of the proceedings
to
be brought before a Higher Court.
12
Rule
53
13
of the
Uniform Rules of Court lays down the procedure to be adopted.
[20]
That procedure will require an application by the accused on oath. In
the present case, the review has been requested by the
Magistrate.
This creates a procedural problem in that Section 24, read in
conjunction with Rule 53 of the Uniform Rules of Court,
contemplates
a review brought before the High Court by one of the parties to the
proceedings sought to be reviewed.
14
SHOULD THE COURT
INTERFERE BY VIRTUE OF ITS INHERENT POWER?
[21]
Section 173 of the Constitution
15
provides
as follows:
“
The
Constitutional Court, Supreme Court of Appeal and High Court have the
inherent power to protect and regulate their own process
and to
develop the common law, taking into account the interest of justice.”
[22]
In Hansen vs The Regional Magistrate, Cape Town & Another,
16
Davis
J, in commenting on the effects of Section 173 on the inherent
jurisdiction of the Courts, stated at 433:
“……
Section
173 of the Constitution confirms a concept of inherent jurisdiction
which promotes the interest of justice within the context
of the
values of the Constitution. This is a wider concept than that
provided for in Section 19(1)(a) and Section 19(3) of the
Supreme
Court Act 59 of 1959….
[23]
From a review of reported cases it seems that before the High Court
can exercise its inherent jurisdiction, particularly in
criminal
matters, the Court should be satisfied that all legal remedies have
been exhausted. In the present case this would include
Appeal, Review
and Petition remedies. See S vs Williams
17
,
Moch vs Nedtravel (Pty) Ltd t/a American Express Travel Service
18
,
S vs Bushebi
19
.
[24] The accused, in
casu, has not applied for leave to appeal nor have any review
proceedings been instituted by him. These are
options still available
to the accused and it therefore cannot be said that all legal
remedies have been exhausted.
[25] This is, in my view,
not a proper case for the Court to exercise its powers in terms of
Section 173 of the Constitution.
[26] In the
circumstances, I propose the following order:
The matter is remitted to
the Magistrate, without any further order.
DATED AT DURBAN ON THIS
5th DAY OF APRIL 2013.
________________
KHALLIL AJ
I agree
________________
GYANDA J
1
See
pages 183 and 187 of the Record
2
Apparent
reference to the Judicial Head of Court at Pinetown
at
the level of Senior Magistrate
3
Section
302(3)(a)
of the
Criminal Procedure Act 51 of 1977
4
See
e-mail sent by Magistrate to Counsel on 8 March 2013
5
See
Page 4 ADD (sic) paragraph X of Magistrate’s Response
6
De
Freitas & Another vs Society of Advocates KwaZulu-Natal 2001(3)
SA 750 (SCA)
7
Criminal
Procedure Act 51 of 1977
8
S
vs De Wee & Others 2006(1) SACR 210 (NC)
9
State
vs Matsane n’Ander 1978(3) SA 821 (T)
10
S
vs Smith 1965(2) SALR Page 121
11
S
vs Ferreira 1978(A) SA 30(T)
12
Bester
vs Easigas (Pty) Ltd & Another 1993(1) SA 30 (C) @ 438
13
Uniform
Rules Regulating Conduct of Proceedings of the High Court of South
Africa
14
Narodien
vs Andrews 2002(3) SA 500 (C) @ 506 D-E
15
Act
108 of 1996
16
1999(2)
SACR 430 (C)
17
2005(2)
SACR 290
18
1996(3)SA
1(A)
19
19
96(2)
SACR 448 (NmS) at 451 (C)