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[2010] ZAFSHC 74
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S v Rahlau (344/2010) [2010] ZAFSHC 74 (5 August 2010)
FREE STATE HIGH
COURT, BLOEMFONTEIN
REPUBLIC OF SOUTH
AFRICA
Review
No. :
344/2010
In the review between:-
THE STATE
and
ABEL GEORGE RAHLAU
_____________________________________________________
CORAM:
RAMPAI,
J
et
KRUGER,
J
_____________________________________________________
JUDGMENT
BY:
RAMPAI,
J
_____________________________________________________
DELIVERED
ON:
5
AUGUST 2010
_____________________________________________________
[1]
This
is a review of proceedings in the magistrate’s court before the
completion of the case. The accused is on trial in the
Kroonstad
District Court on a charge of contravening a protection order issued
against him in terms of section 17(a)
Domestic Violence Act, No.116
of 1998
.
[2] The
particulars of the charge are that, in contravention of the
protection order, previously imposed on him on 16 August 2007,
he
subsequently stabbed the complainant, Ms Malifu Elsi Rahlau, with a
broken bottle and verbally abused her at Kroonstad on the
23
rd
of December 2009, while the protection order was still in force.
[3] The
trial commenced on the 2
8
th
May 2010 before Mr. I. Redelinghuys. Ms Tunzi appeared for the state
and Mr. Swanepoel for the accused. He pleaded not guilty
and gave no
explanation of his plea.
[4] On
behalf of the accused, Mr. Swanepoel requested the trial magistrate
to explain the provisions of section 195 of the Criminal
Procedure
Act, No. 51 of 1977. His contention was that the complainant, as the
accused’s wife, was not a competent and a
compellable witness
for the prosecution in this type of proceedings. He raised the
point
in
limine
.
[5] Ms Tunzi was afforded
no opportunity to respond on behalf of the state. It seems that she
passively remained seated and did
not demand, as she was entitled to,
to be heard.
[6] The
court
a
quo
instantly considered the
point
in
limine
and summarily ruled against the defence. It found that the
complainant, the spouse of the accused, was a competent and
compellable
witness for the prosecution.
[7] The
ruling did not, as one would have expected, put the matter to rest.
Ms Tunzi was about to call the complainant, as the
prosecution
witness, when the defence attorney again rose up. He obviously
reckoned that the court
a
quo
had prematurely made the ruling. The basis of this was that the
provisions of section 195
Criminal Procedure Act, No. 51 of 1977
had
not been explained to the complainant prior to the making of the
ruling. By so-doing, so the argument went, the court
a
quo
denied the complainant an opportunity of exercising the choice to
testify or not to testify against her husband. On account of
all
this it was contended, on behalf of the accused, that the court
a
quo
acted unprocedurally. As a result of the perceived irregularity the
defence lawyer requested that the proceedings be stayed, then
and
there, and that the court ruling be instantly taken on review. The
court obliged.
[8] The
court
a
quo
was persuaded to accede to the course of action as proposed by the
defence lawyer. In a memorandum dated 25 June 2010, it stated
three
reasons which prompted it to take the matter up on special review in
terms of
section 304(4)
Criminal Procedure Act, No. 51 of 1977
. I
deem it unnecessary to restate such reasons here. For the purposes
of this judicial opinion, it seems sufficient to state
that the final
remark by the magistrate accurately encapsulates the collective
thrust of his reasons. He concludes:
“
In geheel gesien is die hof
egter van mening dat dit in belang van geregtigheid sal wees indien
Sy Edele die Regter belas met Hersienings
hierdie verrigtinge tersyde
sal stel (die beredenering en uitspraak ten opsigte van die
bevoegdheid en verpligbaarheid van die
getuie) sodat die staat die
getuie kan roep en die aangeleentheid vandaar hanteer kan word.”
[9]
The
mechanically taped record was transcribed in order to send the matter
on review. It turned out that the proceedings were not
completely
recorded. The magistrate did his best to reconstruct the record. I
am indebted to him for the trouble he took. It
is regrettable,
though, that the defence attorney made no written input, say by way
of a brief, to motivate his preliminary objection.
Some form of an
application, even if it were by way of written heads of argument,
would have gone a long way in clarifying his
argument instead of
leaving everything in the merciful recollections of the magistrate
alone.
[10] A
brief exposition of the applicable legal principles is necessary.
The general rule of law is that a high court generally
reviews
certain terminated proceedings of district magistrate courts. Such
ordinary reviews come to the high courts by way of
section 302.
In
certain circumstances a high court may be specifically requested to
review certain terminated proceedings of a district magistrate’s
court which are not ordinarily reviewable. Such special reviews come
to the high court by way of
section 304.
Section 304A
deals with
errors or irregularities detected after conviction, but before
sentence.
[11] However,
there exists another extraordinary rule of procedure. A high court
has jurisdiction to interfere, by way of review,
in any unterminated
proceedings pending in a lower court. Such exceptional reviews can
be brought to the high courts by way of
section 24(1)(c) of the
Supreme Court Act, No. 59 of 1959 where there has been a gross
irregularity in the proceedings. The high
courts do not readily
interfere midstream in the unterminated proceedings in the lower
courts.
[12] Almost
half a century ago, Steyn CJ stressed that the distinction between
interfering in terminated proceedings, on the one
hand, and
unterminated proceedings, on the other hand, was a real one and that
it should be maintained. As regards unterminated
proceedings in a
lower court, a high court should be slow to interfere and should
confine the exercise of its powers of intervention
to rare cases
where grave injustice might otherwise result if proceedings were
allowed to run continuously to their logical conclusion
in an
ordinary way –
ISMAIL
AND OTHERS v ADDITIONAL MAGISTRATE, WYNBERG AND ANOTHER
1963 (1) SA 1
(AD) at 5G – 6A.
[13] In
S
v BURNS AND ANOTHER
1988 (3) SA 366
(CPD) at
367H
Conradie J said the following about the unusual power of the high
court to interfere in unterminated proceedings in a lower
court:
“
It
will only exercise this power in rare instances where grave injustice
might otherwise result or where justice might not be attained
by
other means.”
[14] Section
195(1) provi
des,
firstly, that the wife of an accused person shall be competent to
give evidence in support of the prosecution in a criminal
case
against her husband, but that she cannot be compelled to do so.
Secondly, the section enumerates a number of exceptions to
this rule
of evidence. The circumstances itemised from subsection (1)(a) to
subsection (1)(i) are exceptional instances where
a wife, who is,
first and foremost, a competent prosecution witness against her
husband, is also a compellable prosecution witness
against him. See
Du Toit
et
al
Commentary
on the
Criminal Procedure Act
,
pages 23-27 to 23-28.
[15] The
contention of the accused was apparently that the magistrate in
failing to explain the provisions of the aforegoing
section 195(1)
to
the complainant exercised his discretion in an irregular and improper
manner. The contention was based on two grounds. The
first ground
was that the magistrate, in making a ruling without the evidence of
the complainant’s first been had and obtained,
paid no
attention to the possibility that the complainant might have elected
to give no evidence for the prosecution against her
accused husband.
The second ground was that the provisions of
section 17
Domestic
Violence Act, No. 116 of 1998
were not covered by or reconcilable
with those of
section 195(1)
Criminal Procedure Act, No. 51 of 1977
.
[16] Where,
as in the instant case, a protection order, which was imposed on the
husband, is still operative and the wife in favour
of whom such
protection order was issued, apparently complains that she has been
assaulted by her husband, then the exception as
embodied in
subsection (1)(a) applies. She becomes a compellable witness for the
prosecution. She can be compelled to testify
against him even if she
prefers not to do so. The first leg of subsection 195(1) gives her a
choice where she is not a victim,
but the second leg does not in
certain specified circumstances, including but not limited to cases,
where she herself is the victim
of her husband’s violent or
abusive actions.
[17] Sometimes
prosecutors do withdraw criminal charges laid by abused wives against
their accused husbands. They often do so solely
in the interest of
marriage in order to promote domestic peace and possible
reconciliation between the feuding spouses. They do
so in their free
and unfettered discretion. An abused spouse cannot, in terms of the
applicable section, dictate to the prosecutor
to drop the charges
against her husband. On the contrary, the law empowers the
prosecutor to compel an abused spouse to testify
for the prosecution
even if she is unwilling to do so. The attitude of the complainant,
in such proceedings, is an irrelevant
consideration. In any case,
where a wife is a victim of an alleged criminal conduct by her
husband, she becomes an absolutely
compellable witness for the
prosecution. It seems no useful purpose would have been served by
calling her before the ruling was
made.
[18]
The
defence was well aware that the complainant was the only prosecution
witness (p. 1, line 19 of the record). This alone, apart
from the
protection order, justified the assumption that, on her own accord,
she volunteered to lay a criminal charge against her
husband; to have
him prosecuted and to attend his trial in order to testify for the
prosecution. There was no insinuation by the
defence at the stage of
pleading or during the course of argument that the complainant did
not want to testify against the accused.
[19] Initially
the defence requested the magistrate to explain the provisions of
section 195
to the accused’s wife (p. 1, line 22 of the
record). However, the same defence lawyer later informed the
magistrate that
it was not even necessary to do so (p. 3, line 1 –
2 of the record). The magistrate is now criticised for doing just
that.
[
20] Mr.
Swanepoel argued that once it was ascertained that the complainant
was the wife to the accused and that she did not want
to testify for
the prosecution against him, she became incompetent so to testify.
“
Sodra so ‘n situasie
ontstaan dan is sy nie bevoeg om te getuig nie.”
(p
.
3, line 2 – 3 of the record.)
[21]
Such
a construction of the section is fundamentally flawed. In my view,
the first ground of the accused’s contention fails
to establish
any irregularity, let alone, gross irregularity to warrant an instant
intervention in the unterminated proceedings
below.
[22] The
second ground of the defence contention was formulated as follows:
“
Ek is van
oordeel dat die uitsonderings wat vervat word in artikel 195 van die
Strafproseswet nie die Wet op Gesinsgeweld dek nie
,
sover dit my kennis strek, en is dit haar keuse om te getuig teen die
beskuldigde.”
(
p.
2, line 2 – 5.)
[2
3] Besides
section 17
Domestic Violence Act, No. 116 of 1998
, the prosecution
also invoked
sections 1
,
5
,
6
and
7
in support of the charge the
accused is alleged to have committed. To argue that, because no
specific reference to these provisions
of the domestic violence
legislation was made in
section 195
of the
Criminal Procedure Act,
No. 51 of 1977
, the spouse cannot be compelled to testify against
another spouse, notwithstanding the various exceptions expressly
mentioned in
section 195
is fundamentally misguided. In dealing with
the charge the magistrate was constitutionally bound to assume and to
accept the validity
of
section 17
of the
Domestic Violence Act, No.
116 of 1998
and the validity as well as the applicability of
section
195(1)
of the
Criminal Procedure Act, No. 51 of 1977
, to the current
proceedings. See
ISMAIL
AND OTHERS v ADDITIONAL MAGISTRATE, WYNBERG AND ANOTHER
,
supra
,
at p. 4D.
The
second ground of the accused’s contention was
,
in my view, a dead issue right from the onset.
[24] At
par. 5G
ISMAIL
AND OTHERS v ADDITIONAL MAGISTRATE, WYNBERG AND ANOTHER
,
supra
,
Steyn CJ said:
“
...
I
should point out that it is not every failure of justice which would
amount to a gross irregularity justifying interference before
conviction. As was pointed out in
Wahlhaus
and Others v Additional Magistrate, Johannesburg and Another
,
1959
(3) SA 113 (AD)
at
p. 119, where the error relied upon is no more than a wrong decision,
the practical effect of allowing an interlocutory remedial
procedure
would be to bring the magistrate's decision under appeal at a stage
when no appeal lies. Although there is no sharply
defined distinction
between illegalities which will be restrained by review before
conviction on the ground of gross irregularity,
on the one hand, and
irregularities or errors which are to be dealt with on appeal after
conviction, on the other
hand,
the distinction is a real one and should be maintained.”
The
criminal justice system m
ight
grind to a complete standstill if it were permissible to take every
irregularity on review in the middle of the trial. Post
trial
remedies are always available to redress any procedural errors or
irregularities which crop up during the course of trial.
[25] I
do not consider that this is one of those rare matters which should
have come on extraordinary review at all. No case whatsoever
has
been made out for such an extraordinary remedial procedure. I am of
the firm view that these unterminated proceedings were
not reviewable
in terms of
section 304(4)
Criminal Procedure Act, No. 51 of 1977
.
This is so because the proceedings had not been terminated and there
was no danger of irreversible miscarriage of justice. The
case must
be allowed to proceed to its logical conclusion in the ordinary
course of events without midstream interruption.
[26] In
my view there has been no irregularity and certainly no gross
irregularity either on the first or second grounds of the
contention.
[27] In
the result the following order is made:
28.1 The
matter is remitted to the district court.
28.2 The
complainant, Malifu Elsi Rahlau, is a competent and
compellable
witness.
2
8.3 The
magistrate is directed to continue with the trial.
___________
___
M.H.
RAMPAI, J
I
concur.
__________
__
A.
KRUGER
,
J
/sp