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[2012] ZAGPPHC 299
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S v Marques and Another (A833/12) [2012] ZAGPPHC 299; 2013 (2) SACR 369 (GNP) (20 November 2012)
REPORTABLE
NORTH
GAUTENG HIGH COURT,
PRETORIA
REPUBLIC OF SOUTH AFRICA
High
Court Reference Number: 1001/2012
Magistrate Serial Number:
H37/2012
Case
Number:14/02589/2009
Case
Number: A833/12
Date
of judgment:20 November 2012
In
the matter between:
THE
STATE
..............................................................................
Respondent
And
ALEXANDER
ALBERTO RAPTIS MARQUES
...................
First
Accused
MARIUS
DE
KOCK
…...........................................................
Second
Accused
SPECIAL
REVIEW JUDGMENT
PHATUDI
J:
[1]
This matter comes before me as a special review referred by the
office of the Regional Court Co-ordinator: Pretoria at the instance
of the Regional Magistrate Pretoria
1
who is presiding in a criminal matter.
2
[2]
The presiding officer indicates in the
memorandum to the Regional Court Co-ordinator that the accused before
him are charged with
murder read with the provisions of
section 51(2)
of the
Criminal Law Amendment Act 105 of 1997
. Director of Public
Prosecutions
3
(the prosecutor) is representing
the state much as accused 1 and 2 are enjoying legal representation.
4
The presiding officer further states that it transpired from the
cross examination of Mr Theodorus Ernest Stokes, one of the state
witnesses, that the witness consulted with the prosecutor at the
prosecutor’s home two days before he was called to take
the
stand. It appears that during such consultation, the prosecutor asked
the witness to make a second statement in which mention
of a suspect
with red hair is mentioned and implicating the suspects by
positioning them during the fight. It appears that he also
helped the
witness with the drafting of Exhibit “P”
[3]
The presiding officer then summoned the
parties to his chamber. He later referred the matter to the Chief
Prosecutor and the Regional
Co-ordinator resulting in this review.
[4]
Section 35 (3) (o) of the Constitution
of Republic of South Africa provide that ‘every accused person
has a right to a fair
trial, which includes the right of appeal to,
or review by, higher court’. Grounds for review are provided in
the criminal
procedure Act 51 of 1977, and the Supreme Court Act 59
of 1959.
[5]
On perusal of the record including the memorandum, it is clear that
neither the automatic review provisions encapsulated in
section 302
nor the special review provisions under
section 304
(4) of the
Criminal Procedure Act 51 of 1977
apply to the present situation,
because, in the first instance, both accused are legally represented,
secondly no sentence was
passed.
5
Sections 302
and
304
(4) can only be invoked after the sentence has
been passed.
[6]
The ground of review upon which the
Regional Co-ordinator and Presiding officers apparently rely on is
provided in terms of section
24 (1) (c) of the Supreme Court Act 59
of 1959. The section provides for ‘the grounds upon which the
proceedings of an inferior
court may be brought under review before a
provincial division or before the local division having review
jurisdiction, [which]
are:
(a)
...
(b)
...
(c)
Gross irregularity in the proceedings...’
[7]
A gross irregularity in lower court
proceedings means an irregular act or omission by the presiding
judicial officer in respect
of the proceedings. Van Dijkhorst AJ (as
he then was) penned in S v Mametja
6
that circumstances where the High court may exercise its inherent
power to review lower court proceedings are only ‘where
grave
injustice might otherwise result or where justice might not by other
means be attained’.
7
[8]
Section 24 of the Supreme Court Act can
be invoked in instances where there is a complaint against the method
of proceedings conducted
by the presiding judicial officer.
[9]
The Presiding Officer’s “gross
irregularity” complaint is not, in the first place, covered by
section 24. Section
24 is clearly a ground of review which ought to
be employed before the High Court by one of the parties to the
proceedings sought
to be reviewed.
[10]
The complaint of “gross
irregularity” relied on is not a mistake of law or an incorrect
application of the law. Applying
the principles set out above to the
presiding judicial officer’s complaint, I am of the view that
the complaint does not
amount to an irregularity in the proceedings.
[11]
The evidence led by the witness is
correctly tested under cross examination. The purpose of the cross
examination is, among others,
to test the credibility and reliability
of the evidence led by a witness
[12]
The
presiding officer’s duty is to evaluate the credibility and
reliability of the evidence tendered. The presiding judicial
officer
presides over cases before him as an "adjudicator” who has
to be seen to be objectively impartial to finality.
In casu, the
presiding officer must, in my view, proceed with the hearing of the
matter to finality.
[13]
In my consideration of all the
principles set out, I am of the view that this is not a case where
this court should exercise its
inherent jurisdiction to review and or
set aside the proceedings. I am further of the view that the matter
has been erroneously
submitted to this court for review.
[14]
I noted that the presiding officer
lodged the complaint with the Chief Prosecutor. The Director of
Public Prosecutions is indeed
at liberty to institute any action they
deem appropriate.
In
the result I make the following order:
The
matter is remitted back to the Regional Court Pretoria for hearing of
the matter to finality.
AML
PHATUDI
Judge
of the High Court
I
agree.
M.
W. MSIMEKI
Judge
of the High Court
On
Behalf of the 1
st
Accused: Efstratiou & Visagie
Attorneys
Suite
12, Avocet Haseldene Office Park Silver Lakes Drive Tijger Valley
Adv.
Ferreira SC
On
behalf of 2
nd
Accused: J.W. Wessels & Partners Inc
811
Schoeman Street
Arcadia
Pretoria
Adv.
S Joubert SC
On
Behalf of the Respondent: The State Prosecutor
Regional
Court 3
1
K.H.
Bosch, Regional Magistrate: Pretoria
2
Case Number: 14/2589/2009 Regional Court: Pretoria
3
The
public prosecutor’s name is concealed due to an anticipated
disciplinary action
4
Adv
Ferreira SC for Accused 1 and Adv S Joubert SC for Accused 2.
5
S
V
Mametja
1979( 1) SA 767
(T)
6
Ibid
7
Ibid
page 768 F - G