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[2011] ZAKZPHC 16
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National Director of Public Prosecutions v Levitt (AR80/2010) [2011] ZAKZPHC 16 (7 April 2011)
13
IN THE KWAZULU-NATAL
HIGH COURT OF SOUTH AFRICA PIETERMARITZBURG
CASE NO. AR80/2010
In the matter between:
DIRECTOR OF PUBLIC
PROSECUTIONS
KWAZULU-NATAL
…..............................................................
APPLICANT
and
REGIONAL MAGISTRATE
T.W. LEVITT
…........................
RESPONDENT
AND
BALLISTICS PROTECTION
AGENCIES CC
Represented by David
William Smith
INTERESTED PARTY
_______________________________________________________
REVIEW JUDGMENT
delivered on 07 April
2011
______________________________________________________
SWAIN J
[1] The applicant, the
Director of Public Prosecutions for KwaZulu-Natal, seeks an order
reviewing and setting aside an order made
by the respondent, a Mr. T.
W. Levitt (a Regional Magistrate in Durban) in Case No.
23/16447/2008, refusing an application by the
applicant for an
adjournment of the matter. As a consequence the applicant was forced
to close its case. Thereafter an application
for the discharge of the
accused, Ballistic Protection Agencies cc, represented by David
William Smith and cited in the present
proceedings as the
“interested
party”
, in terms of Section 174 of the Criminal
Procedure Act No. 51 of 1977 (the Act) was granted by the respondent.
As a consequence
the applicant also seeks a review of this decision.
[2] The respondent has
filed a response to the application, in which he states that he
stands by both of the decisions that he made,
but will abide the
decision of this Court.
[3] The interested party
has filed an opposing affidavit in which a number of
“matters
in limine
”
are set out, in which the
interested party complains of the failure by the applicant to comply
with the provisions of Rule 53 (1)
of the Rules of this Court, as
well as a number of other technical defects in the application
papers. In addition, it is alleged
that the applicant has failed to
bring the present review proceedings, within a reasonable period of
time after the respondent’s
orders were granted.
[4] I propose dealing at
the outset with the merits of the application and thereafter with
such
“matters
in limine
’.
[5] The Magistrate’s
power to adjourn the proceedings is found within the provisions of
Section 168 of the Act in terms of
which the Magistrate was entitled
to adjourn the proceedings, “
if the Court deems it
necessary or expedient”
to do so.
[6] The decision under
the section is one within the discretion of the judicial officer
presiding at the trial and should, therefore,
not be interfered with
except on the ground that he or she, has not exercised a judicial
discretion. An appeal court should not
substitute its discretion for
his or hers and should therefore not interfere, merely on the ground
that it would have come to a
different conclusion.
R v Zackey
1945 AD 505
(A) at
511
In this case, by
reference to the decision in
Maxwell v Keun
1928 (1) KB 645
it was pointed out that a
court of appeal would be very slow to interfere with the discretion
of the judicial officer in the Court
a quo,
on the question of the adjournment of a trial and it
very seldom would do so.
[7] In exercising such a
discretion two basic principles must be borne in mind.
“
The one is
that it is in the interests of society and accordingly of the State
that guilty men should be duly convicted and not
escape by reason of
any oversight or mistake which can be remedied. The other, no less
valid, is that an accused person, deemed
to be innocent, is entitled,
once indicted to be tried”.
State v Geritis
1966 (1) SA 753
(W)
at 754 D – F
[8] Where the State seeks
an adjournment, relevant factors are whether the persons sought to be
called are material witnesses, that
the State has been guilty of no
neglect in omitting to procure their attendance and there is a
reasonable expectation that their
attendance will be secured at a
future date. Although these factors are all of importance, it is not
necessary that they all be
satisfied before an adjournment may be
granted. Although it is essential that the evidence sought to be led
is material, even if
there has been neglect in securing the
attendance of a witness, an adjournment might be granted if the Court
is satisfied that
the witness will attend at a later date.
Geritis
supra
at 754 (H) – 755 D
It should be noted that
in Geritis, the Court was not concerned with the approach to be
adopted by an appeal court, dealing with
a challenge raised to a
decision to refuse an adjournment taken by the Court
a
quo
, but rather with the approach to be
followed by a court sitting as a court of first instance, to a
request for an adjournment.
[9] It is clear however
that the decision must ultimately depend upon the material facts of
the particular case.
[10] The material facts
of the case are as follows:
[10.1] The respondent was
charged with fraud, it being alleged that the respondent had
unlawfully and with intention to defraud,
falsely misrepresented to
the Commissioner of the South African Revenue Services, that the
contents of input invoices, for the
purposes of the payment of Value
Added Tax were correct, when the accused knew that the supplier of
the goods never existed and
all the information supplied was false.
It was alleged that the accused as a result caused potential
prejudice to S A R S in the
amount of R691,767.98. In the alternative
it was alleged that the accused contravened Sections 59 (1) and 59
(2) of the Valued
Added Tax Act, by furnishing tax invoices knowing
them to be false.
[10.2] The accused was
summoned to appear at the Magistrates’ Court in Durban on 12
November 2008, the matter was enrolled
on two occasions and was then
adjourned for trial on 07 April 2009.
[10.3] On 07 April 2009,
the trial commenced and the evidence of Philip Mhlongo was heard and
completed on that day.
[10.4] After his evidence
was completed the Prosecutor, Mr. Manciya, who also argued the review
before us, informed the Court that
he did not have further witnesses
as they were not available, but he wished to call them at a later
date. When asked by the Court
who these witnesses were he said he
would be calling Mr. Haynes, the accountant of the accused as well as
a Mr. Avis, whom he referred
to as
“the investigating
officer in this case”.
[10.5] On 27 August 2009
Mr. Haynes was called and when he had completed his evidence, Mr.
Manciya said although it had been planned
for the matter to run on 27
and 28 August 2009, he did not have Mr. Avis present and had not
subpoenaed him to attend court. He
explained the reason for this was
that because the witness worked for S A R S he believed
“
that he
could simply be called in and from what I thought, he was going to
come without serving a subpoena”.
He accordingly applied
for an adjournment of the matter, which was opposed by the legal
representative of the accused.
[10.6] Later during
argument on the adjournment, Mr. Manciya indicated that after the
evidence of Mr. Avis he would be
“
Calling
these other people”.
When the legal
representative objected on the basis that an adjournment was now
being sought to lead the evidence of several witnesses,
the
Magistrate asked Mr. Manciya, whether the last physical witness would
be Mr. Avis. He replied this would be the case. When
the Magistrate
asked Mr. Manciya
“
There are no
other witnesses?”
Mr.
Manciya replied
“No”
.
[10.7] The Magistrate
thereafter refused the adjournment and asked Mr. Manciya
“
Does it mean
you close your case? You are forced to”
,
to which Mr. Manciya replied
“
I am forced
to, against my convictions”
to
which the Magistrate replied
“
I
understand”.
[10.8] The legal
representative for the accused then requested the discharge of the
accused in terms of Section 174 of the Act,
whereafter Mr. Manciya
sought an adjournment of the matter to the following day, to enable
him to prepare argument.
[10.9] On the following
day Mr. Manciya indicated he wished to take the decision of the
Magistrate refusing an adjournment, on review.
The Magistrate then
asked Mr. Manciya who the witnesses were who he wished to call, and
he replied
“
Avis, Maria
Barnes, van der Walt from S A R S and a person from Sitco”.
When questioned further
he said that an additional witness was
“Buys”.
[10.10] When the
Magistrate asked Mr. Manciya why van der Walt was not at Court, he
said she had not been subpoenaed, because he
wanted to canvas the
admission of her affidavit, which was in the docket, with the
defence.
[10.11] The Magistrate,
after further argument, then refused to stay the matter to enable the
State to bring an application for
a review of his decision refusing
the adjournment. Thereafter the Magistrate heard further argument on
the application for the
discharge of the accused and granted the
application.
[10.12] If the matter had
been adjourned, the earliest date for continuation would have been
during February or March 2010.
[11] Before us Mr.
Manciya, fairly and properly conceded that it was due to his neglect,
that the attendance of the necessary witnesses
at the trial on 27
August 2009, was not secured. It is clear that his neglect was of a
serious nature, as the State had four months
to secure the attendance
of all of these witnesses. In addition, it is clear that the object
in adjourning the matter to 27 to
28 August 2009, was to complete the
trial.
[12] When all of the
above is considered, I am not persuaded that the Magistrate failed to
exercise his discretion judicially. The
Magistrate considered the
evidence that had been led against the accused at that stage, with
particular emphasis upon the vital
issue of whether the supplier of
the goods in question did not exist. The Magistrate also considered
the nature of the evidence
that the State wished to lead, as well as
its materiality, in establishing the issue of whether the supplier of
the goods existed.
[13] The Magistrate also
considered the history of the matter, as well as the need for the
previous adjournment of the matter, which
were of relevance in
assessing the possible prejudice to the accused, if the matter was
adjourned again.
[14] The Magistrate was
therefore alive to the two basic principles to be applied, in
exercising his discretion, whether to grant
an adjournment or not,
namely that guilty men should be duly convicted and not escape by
reason of any oversight or mistake, which
can be remedied, as against
the right of an accused person once indicted, to be tried with
expedition.
[15] Bearing in mind the
dictum in Zackey that an appeal court should not, in a case such as
the present, substitute its discretion
for that of the Magistrate,
and should not interfere merely on the ground that it would have come
to a different conclusion, I
am satisfied that the application for a
review of the Magistrate’s decision should be dismissed.
[16] A dismissal of the
application to review the decision of the Magistrate refusing an
adjournment, has as its inevitable consequence,
the dismissal of the
application to review the decision of the Magistrate, to discharge
the accused in terms of Section 174 of
the Act. This is because the
basis for the challenge raised against this decision, was the refusal
by the Magistrate to grant an
adjournment, as no irregularity has
been alleged on the part of the Magistrate, in granting the discharge
of the accused.
[17] As regards the
so-called
“matters
in limine”,
in
the light of the conclusion I have reached on the merits of the
application, I find it unnecessary to deal with them all, save
and
except for the allegation that the applicant failed to bring the
present proceedings, within a reasonable time of the refusal
by the
respondent, of the application for an adjournment.
[18] The notice of motion
was issued by the Registrar on 02 March 2010, more than six months
after the refusal of an adjournment
of the matter. No explanation has
been advanced for such an inordinate delay, which is a further
glaring example of the dilatory
manner in which the applicant has
acted. It is also clear that the papers were only served upon the
interested party, on 16 February
2011, some eighteen months after the
orders made by the respondent. Again there was no satisfactory
explanation by the applicant
for this conduct.
[19] It is clear that
review proceedings must be instituted within a reasonable time. Two
of the principle reasons why a court should
have the power to refuse
to entertain a review, at the instance of an aggrieved party who has
been guilty of unreasonable delay
are that:
[19.1] Unreasonable delay
may cause prejudice to other parties.
[19.2] It is both
desirable and important that finality should be reached within a
reasonable time, in respect of judicial and administrative
decisions.
Radebe v Government
of the Republic of South Africa & Others
1995 (3) (SA) 787
(N) at 798 A – D
[20] In deciding whether
a reasonable time has elapsed, a court does not exercise a
discretion. The enquiry is a factual one, that
is, whether the period
which has elapsed is, in the light of all the relevant circumstances,
reasonable or unreasonable
Radebe
supra
at 798 I
[21] In my view the
delay, in the absence of any explanation by the applicant, is
unreasonable. The prejudice to the interested
party of having to
defend criminal proceedings some two years after the first date of
hearing, is self evident. I would accordingly
dismiss the application
on this additional ground.
[22] The dilatory conduct
of the applicant in the prosecution of the review proceedings before
this Court, form the basis for the
request by the interested party,
that the applicant be ordered to pay the costs of this application on
the attorney and client
scale. The interested party also points to
the conduct of the applicant in only serving a copy of the papers
upon the interested
party, on 16 February 2011, some eighteen months
after the grant of the order complained of. In my view, the dilatory
conduct of
the applicant constitutes an abuse of the process of this
Court, particularly as there is no explanation for this behaviour. I
am satisfied that the disapproval of this Court, should find
expression in a punitive award of costs on the attorney and client
scale against the applicant.
I make the following
order:
The application is
dismissed.
The applicant is ordered
to pay the interested party’s costs, such costs to be taxed on
the attorney and client scale.
_________
K SWAIN J
I agree
__________
GCABA A J
Appearances /
Appearances:
For the Applicant :
Mr. P. Manciya
Instructed by
:
Director of Public Prosecutions
KwaZulu Natal
For the Respondent/
Interested Party :
Mr.
R. D. Sichel
Instructed by
:
Jacques Botha & Associates
Durban
Date of hearing :
31
March 2011
Date of Judgment
:
07 April 2011