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[2009] ZAGPPHC 339
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S V Mnisi (Rh138/2005, A453/09) [2009] ZAGPPHC 339 (27 May 2009)
IN
THE HIGH COURT OF SOUTH AFRICA
(NORTH
GAUTENG HIGH COURT)
DATE:
27 MAY 2009
NOT
REPORTABLE
Magistrate:
MHALA
Case
number: RH138/2005, A453/09
High
Court Reference number: 579
THE STATE VERSUS
FRANK MNISI
REVIEW JUDGEMENT
Pretorius J
This
case was placed before the court as a special review in terms of
section 304 (41 of Act 51 of 1977.
The
regional magistrate referred it to the High Court before convicting
the accused.
The
accused was charged with rape. The victim, [….] years of age
at the time of the trial, gave evidence. The accused was
represented
by Adv Seamela and at a later stage by Mr Jordaan. Whilst the victim
was being cross-examined by Mr Jordaan, the prosecutor
applied to use
the services of an intermediary, which was granted by the magistrate,
without granting Mr Jordaan an opportunity
to oppose this
application. Thereafter Mr Jocdaan applied for the recusal of the
presiding magistrate.
Mr
Mathubula, the magistrate, then decided to send the matter on review
to the High Court, without finalizing the case.
Section
304 (4) of the Criminal Procedure Act 51 of 1S77 provides:
"(4)
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 court or judge shall have the seme 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.”
This
provision makes it clear that a case can only be referred for review
after a sentence has been imposed -- which is not the
case in this
instance.
Section
304 A of the Criminal Procedure Act provides:
"(a)
if 3
magistrate
or regional magistrate after conviction but before sentence is of the
opinion that the proceedings in respect of which
he brought in a
conviction are not in accordance with justice, or that doubt exists
whether the proceedings are in accordance with
justice, he shall,
without sentencing the accused, record the reasons for his opinion
and transmit them, together with the record
of the proceedings., to
the registrar of the provincial division having jurisdiction, and
Such registrar shall, as soon as is practicable,
lay the same for
review in chambers before a judge, who shall have the same powers in
respect of such proceedings as if the record
thereof had been laid
before him in terms of section 303. ”
This
does not apply in this instance as the accused has not been convicted
at this stage. The magistrate is seeking an opinion from
this court
before completing the case.
In
S v Jones
1987 (3) SA 823
(N) Leon J held at p 826 F - H:
"The
reluctance of the Supreme Court to interfere in incomplete
proceedings was also reaffirmed by (he Full Court of the Cape
Provincial Division in Haysom v Additional Magistrate. Cape Town, and
Another; S v Haysom 1
979 (3) SA
15
5 (C)
at 160S - E. In Haysom's case the Court refused to hold that the
applicant would have suffered a grave injustice because of the
refusal by the magistrate to grant an application for a postponement.
The Court went on to say that, even though it may be highly
inconvenient for art accused person to have to wait until termination
of a trial before going on review, being placed in such a
position
did not subject the accused in such a case to grave injustice, nor
result in irreparable prejudice."
The
Director of Public Prosecutions was requested to comment on the
application for review from the magistrate. I must agree with
the
Director of Public Prosecutions that the magistrate is seeking an
opinion. This is not one of the rare cases where irreparable
harm
will be done if the matter is remitted to the trial court to finalize
the matter. Although it may cause inconvenience to the
accused, it
will not
“
subject
the accused in such a case to grave injustice, nor result in
irreparable prejudice."
Therefore
this court declines to intervene and the matter is remitted to the
trial court.
C.
Pretorius
Judge
of the High Court
I
agree
R.
D. Claasen
Judge
of the High Court