About SAFLII
Databases
Search
Terms of Use
RSS Feeds
South Africa: South Gauteng High Court, Johannesburg
SAFLII
>>
Databases
>>
South Africa: South Gauteng High Court, Johannesburg
>>
2009
>>
[2009] ZAGPJHC 61
|
|
S v Chauke and Another (124/09) [2009] ZAGPJHC 61; 2010 (1) SACR 287 (GSJ) (4 November 2009)
IN THE
SOUTH GAUTENG HIGH COURT
(JOHANNESBURG)
High
Court Ref No: 90/09
Magistrate’s
Serial No: 5/09
Review
Case No: 124/09
4
November 2009
Magistrate
BOKSBURG
THE
STATE
and
STELL CHAUKE
Accused 1
RISIMATI BALOYI
Accused 2
REVIEW
JUDGMENT
MOSHIDI, J
:
INTRODUCTION
[1] This matter was placed before me on special
review. The crisp issue
in this review is
whether the Court, on review, can set aside an acquittal of an
accused by a magistrate’s court.
[2] The two accused persons were charged with
theft, alternatively, possession of stolen property, in the Boksburg
Magistrate’s
Court. They were legally represented, and pleaded
not guilty.
[3] The State led the evidence of the complainant
and the arresting officer, Const Herbert Brandt (Brandt). At the end
of the State’s
case, both the accused closed their respective
cases without testifying. Accused 1 (Stell Chauke), was convicted of
the alternative
count, while accused 2 (Risimati Baloyi), was
acquitted. Accused 1 was duly sentenced to 3 years’
imprisonment.
[4] It subsequently transpired, and it was
brought to the attention of the magistrate, that he in fact convicted
the incorrect
accused, namely, accused 1, instead of accused 2. The
magistrate, however, was unaware that during the trial, the accused
persons
were in fact transposed in the accused dock. In other words,
the accused persons were not standing or seated in their correct
numerical order. In articulating the confusion, the magistrate
states:
“
It has now been brought to my attention
that right from the outset the accused did not stand in the right
order right through the
trial and the attorney and the court orderly
and the prosecutor did not detect that and it was not brought to the
court’s
attention. The position further is that the witness
pointed out accused 1 as the person who was in possession of the bike
while
it now appears as if they were standing the wrong way around
and its seems to be accused 2, Mr Baloyi.
”
[5]
From the above
factual disposition, it is more than apparent that the conviction and
resultant sentence imposed on accused 1 were
irregular, and a nullity
from inception. The error, discovered subsequently, as stated above,
was also of such a nature that it
could not be corrected by the
magistrate in terms of the provisions of
s 176
of the
Criminal
Procedure Act 51 of 1977
, which section provides:
“
When by mistake a wrong judgment is
delivered, the court may, before or immediately after it is recorded,
amend the judgment.
”
See also
S v Wells
1990 (1) SA 186
(A).
[6] In the present matter accused 1 was wrongly
convicted and sentenced on 16 March 2009. The error was apparently
discovered
on 18 March 2009 when the decision was made by the
magistrate to transmit the matter for review by this Court. There
should be
no barrier at all in setting aside the conviction and
sentence in respect of accused 1.
[7] However, the position regarding accused 2,
who was acquitted, is hugely different, and indeed problematic. It
is the request
of the magistrate that in setting aside the entire
judgment, accused 2 ought to be charged afresh. This is also the view
of the
Director of Public Prosecutions whose opinion, which I
solicited in May 2009, and received in October 2009 only.
Regrettably,
the memorandum of the Director of Public Prosecutions
contained no authorities or case law, which may have been helpful in
resolving
this unusual matter. The matter is undoubtedly not as
simple as both the magistrate and the Director of Public Prosecutions
seem
to suggest. Re-charging accused 2 obviously implies rather
serious consequences and implications for him. In essence, the Court
is asked to simply set aside the acquittal of accused 2 in
circumstances described above, without any representation from him,
or hearing him, in other words, without the application of the
audi
alteram partem
principle. What further
compounds the issue of setting aside an acquittal on review, are the
various conflicting decisions in the
different High Courts
countrywide.
Section 304
of the
Criminal Procedure Act does
not
expressly empower a Reviewing Court to set aside an acquittal.
[8] In
S v Aronstam
1966 (3) SA 780
(T), where a company (accused 1) was charged with a
statutory offence, the magistrate convicted the company
representative (accused
2), and acquitted accused 1. The magistrate
had actually intended the reverse. Accused 2 appealed. The
magistrate and the State
requested the Court to amend the record so
as to reflect what the magistrate intended. At p 781E the Appeal
Court said:
“
The fact is that if we accede to the
request of the magistrate we shall be convicting accused No. 1 who
was five months ago acquitted
in the court below and who – and
this is the important point – is not represented here today at
all. It would in effect
mean not only that a discharged person, duly
acquitted, is convicted five months later in respect of the very same
proceeding,
but that that is in the present case done in his absence.
This is clearly an untenable proposition.
”
The appeal was upheld and the conviction and
sentence were set aside. I must however,
hasten
to mention that the distinctionable factor in the present matter is
that the magistrate is not requesting the Court to amend
his
judgment. He is in fact asking the reviewing Judge to set aside the
whole judgment.
[9] In
S v Lubisi
1980 (1) SA 188
(T), the accused was tried for stock theft in the
Soweto Magistrate’s Court. He pleaded not guilty before
magistrate, Mr
Hawkins. The evidence of the complainant was led.
After cross-examination by the accused, and the completion of the
complainant’s
evidence, the State closed its case. After the
accused had indicated that he wished not only to testify under oath,
but also to
call a witness, the matter became part-heard and was
postponed. After several subsequent postponements, and for some
inexplicable
reason, the record of the evidence given previously was
mislaid and became separated from the charge sheet. A new charge
sheet
was prepared and placed before another magistrate, Mr Van
Rooijen, also in the Soweto Magistrate’s Court, with a notation
thereon that the accused had already pleaded “
not
guilty
” to the charge. At the
same time, a different prosecutor appeared who had no knowledge of
the prior proceedings. The new
prosecutor was apparently under the
impression that no evidence had been led in that case. He requested
that the charge against
the accused be withdrawn as he had no witness
available. The magistrate pointed out that the accused having
pleaded not guilty
was entitled to a verdict. The magistrate
proceeded to find the accused not guilty. When the true position came
to light, magistrate
Van Rooijen who presided on the second occasion,
requested the Supreme Court’s assistance in setting aside the
proceedings
and verdict before him in order that the first
proceedings before Mr Hawkins may be finalised. The reviewing Judge,
Le Roux J,
in setting aside the acquittal of the accused, and
ordering the part-heard case before Mr Hawkins be continued with,
said:
“
It seems obvious that the proceedings
before Mr Van Rooijen on the 7
th
of November 1978 were abortive and a nullity, and could have been met
with a plea of lis alibi pendens, which would have brought
them to an
immediate conclusion. It seems to me not in the interests of justice
to allow the accused to escape the possible consequences
of his
conduct whether through guile or ignorance, and in my view, the
original proceedings should follow their course to their
normal
conclusion.
”
[10] I must hasten to point out that although
S
v Lubisi
concerned the setting aside of
an acquittal on review, the circumstances and facts thereof were
clearly distinguishable in several
respects from the facts in the
present matter. In addition, although
S
v Lubisi
was subsequently approved in a
Full Bench decision of the then Transvaal Provincial Division in
S
v Masiya
1983 (4) SA 242
(T), it was not followed in other
provinces as indicated earlier. In fact, it was criticised in
certain instances. For example,
in
S v Makriel and Others
1986 (3) SA 932
(C), the accused appeared in the magistrate’s
court on a charge of murder, alternatively culpable homicide. Due to
an administrative
error, the magistrate acquitted the accused in
pursuance of a decision by the Attorney-General not to prosecute
them. The magistrate
then submitted the matter on review with the
request that the acquittals be set aside. The Court declined to set
aside the acquittals.
At p 933E-H, Marais J said:
“
This decision runs counter to what was decided in S v
Lubisi
1980 (1) SA 187
(T) but with respect to the learned Judges who
presided in that matter, they do not appear to have taken into
account that the
invocation and exercise of the Court’s
inherent powers of review without any notice whatsoever to a vitally
interested party,
namely the accused, was fundamentally irregular and
a breach of the rules of natural justice. In fairness to the learned
Judges,
it should be said that the Attorney-General, to whom the
matter had been referred because of the Court’s doubt about the
propriety of setting aside an acquittal, failed to alert them in this
respect and recommended that the magistrate’s request
that the
acquittal be set aside, be granted. In The Inherent Jurisdiction of
the Supreme Court, Taitz describes Lubisi’s
case as an unusual
one which “some may consider a dangerous precedent” but
says “it would be difficult to question
the correctness of the
decision”.
(At 83.) He too failed to recognise the
fundamental flaw in the decision and, in my respectful view, it is an
erroneous decision
which should not be followed.
”
[11] Similarly, in
S v Ntswayi en ‘n Ander
1991 (2)
SASV 397 (K), criticism was levelled at the decision in
S v
Lubisi
. In that case, the accused appeared in the magistrate’s
court on a charge of dealing in dagga. The State produced an
affidavit
in terms of
s 212
of the
Criminal Procedure Act 51 of 1977
to the effect that a sample which was analysed contained dagga. No
evidence was led, however, that the sample was connected with
the
accused and at the end of the State’s case, the accused were
discharged because of the absence of such evidence. The
failure to
lead such evidence allegedly resulted from the fact that after a
postponement of the case, a different prosecutor took
over the
prosecution and the latter was not aware that the defence had
consented to make admissions regarding the affidavit. After
the
discharge of the accused these allegations came to the attention of
the magistrate who sent the matter on review requesting
that the
decision be set aside and that the matter be remitted back to him so
that the necessary evidence could be led. In refusing
the request,
and at p 401e Tebbutt J, said:
“
Lubisi se beslissing het nie byval gevind nie in heelwat
ander sake. (Kyk S Makriel and Others
1986 (3) SA 932
(K); S v
Makopu
1989 (2) SA 577
(OK)) … Ek is die mening toegedaan dat
daar nie op die beslissing in Lubisi se saak in die huidige geval
gesteun kan word
nie. Ek is ook van mening dat die inherente
jurisdiksie wat die Hooggeregshof mag hê nie daarvoor gebruik
kan word om foute
wat enige partye tot ‘n geding mag begaan
het, reg te stel nie. Dit is in wese wat hierdie hof nou gevra word:
om die Staat
die kans te gee om ‘n fout wat hy gemaak het reg
te stel.
”
[12] Indeed
S v Lubisi (supra)
was also not followed in
S
v Williams
2005 (2) SACR 290
(C), but was referred to in
S v
Engelbrecht and Others
[2005] ZAWCHC 11
;
2005 (2) SACR 383
(C). In
S v Williams
(supra)
, at p 298b-c, N C Erasmus J said:
“
Similarly, in S v Bushebi
1996 (2) SACR 448
(NmS) at 451C,
Leon AJA cautioned that, even if it is assumed that a Court does have
the inherent power to intervene, such power
‘should be
exercised sparingly and only in the most exceptional circumstances’.
The Court went on to point out that
it would appear that there were,
at that stage, only two cases where the South African Supreme Court
had, in the exercise of its
inherent power of review, set aside an
acquittal. These were the unreported case of Hubbard v Regional
Magistrate, the ratio of
which was that the mistake in that instance
deprived the party of the right to a fair trial, and S v Lubisi. The
latter case,
the facts of which were extremely unusual, has not found
favour in subsequent cases (see S v Makriel and Others
1986 (3) SA
932
(C); S v Makopu (supra); Attorney-General, Eastern Cape v Linda
1989 (2) SA 578
(E) and S v Ntswayi en ‘n Ander
1991 (2) SACR
397
(C). None of the unusual facts in Lubisi’s case exist in
the present case.
”
[13] In a most recent case, namely,
DPP KwaZulu-Natal v The
Regional Magistrate, Vryheid and Others
2009 (2) SACR 117
(KZP),
an acquittal was set aside on review coupled with an order that any
re-trial was to commence afresh before another judicial
officer. The
facts were briefly as follows. Seven accused were charged with one
count of kidnapping and two counts of assault
with intent to do
grievous bodily harm in the magistrate’s court. During the
evidence of the complainant, the case was adjourned
and postponed on
several occasions in order to allow the complainant to compose
himself and to seek medical assistance. The complainant
was
emotionally traumatised. At some stage when the prosecutor sought a
further postponement as the complainant was still traumatised,
the
magistrate refused the request and emphasised the accused’s
right to a speedy trial. The State refused to close its case.
However, the magistrate ordered the State’s case closed. The
accused closed their cases and they were acquitted. The applicant
sought to have the acquittal reviewed and set aside. The Court
considered in great detail the issue whether it was competent to
review proceedings of a lower Court wherein an accused had been
acquitted. In addition, in coming to its decision, the Court found
that
s 304
of the
Criminal Procedure Act 51 of 1977
would not be
applicable in that review, and that the only basis upon which review
proceedings can be instituted is in terms of
s 24(1) of the Supreme
Court Act 59 of 1959. The latter section provides:
“
(1) The grounds upon which the proceedings of an inferior
court may be brought under review before a provincial division or
before
a local division having review jurisdiction, are –
…
…
gross-irregularity in the proceedings; and
the admission of inadmissible or incompetent evidence or the
rejection of admissible or incompetent evidence.
”
It was on the basis of the latter section, coupled with
considerations of other applicable legal principles, that the Court
exercised
its inherent powers to review and set aside the acquittal.
I must also mention that with regard to principles of criminal law
pertaining to
autrefois acquit
, the Court was of the view that
an accused can only invoke such a plea if the acquittal was on the
merits of the case. With regard
to an accused person’s right to
a fair trial in terms of s 35(3)(m) of the Constitution of the
Republic of South Africa,
1996, the Court said:
“
(32) There is obviously a constitutional duty to ensure
that accused persons receive a fair trial, and such trial should be
concluded
as expeditiously as possible. However, this must be weighed
and balanced against the community’s interest in ensuring that
wrongdoers are prosecuted.
”
[14] The facts in all of the above cases, with the exception of
S
v Aronstam (supra)
, are clearly distinguishable from those in the
present matter in a number of respects. These cases mostly concerned
either part-heard
matters before one judicial officer which were
inadvertently later placed before another judicial officer for
continuation, or
where a judicial officer acquitted the accused
during the State’s case, for whatever reason. Indeed
S v
Lubisi
belongs to the former category, while
DPP,
KwaZulu-Natal v The Regional Magistrate, Vryheid and Others
,
falls into the latter classification. The facts of the present matter
which are substantially unique, were sketched above. Accused
2 was
in a proper trial. The State led all its evidence. The acquittal,
at the end of the State’s case, was on the merits
of the case
(see
DPP, KwaZulu-Natal v The Regional Magistrate, Vryheid and
Others (supra)
, para [27]. The irregularity had nothing at all
to do with substantive law or procedure save that the accused persons
were interposed
in the accused dock.
[15] Indeed, s 35(3)(m) of the Constitution of the Republic of South
Africa, 1996, provides:
“’
(3) Every accused person has a right to a fair
trial, which includes the right –
(m) not to be tried for an offence in respect of an act or
omission which that person was previously either acquitted or
convicted’.
In S v Basson
[2004] ZACC 13
;
2005 (1) SA 171
(CC), the Constitutional Court had
the opportunity to consider, inter alia, this right. At para [66]
Ackerman J said: ‘In
McIntyre en Andere v Pietersen en ‘n
Ander it was held that the purpose of the right contained in s
35(3)(m) was to protect
citizens against the possibility of repeated
prosecutions for the same conduct. The Court held that such
protection was necessary
in the interests of fairness and also
because of the public interest in the finality of judgments.’
”
[16] In the present matter, it may well be argued that once the
conviction of accused 1 and the sentence imposed on him, are set
aside on the grounds that the proceedings in the magistrate’s
court were irregular, and therefore, a nullity, as indeed they
were,
the acquittal of accused 2 should equally be set aside. This,
however, is immaterial as the potential prejudice will be
suffered by
accused 2 should his acquittal be set aside by this Court without
further ado, and without hearing him on review.
[17] I conclude that, based on the above constitutional imperatives
of a fair trial, as well as the principle of
audi alteram partem
,
it will not be fair and in the interests of justice to simply set
aside the acquittal of accused 2 in the circumstances of this
case.
I could also not find any authority in which the fair approach in
S
v Aronstam
(
supra
) was criticised or disapproved. Each
case must, however, be adjudicated on its own merits. In the present
matter it appears that
to simply not make an order setting aside the
acquittal of accused 2 would be appropriate.
[18] There is one more matter that requires mentioning. Whilst the
decision of the magistrate in referring this matter for review,
and
releasing both accused persons pending such review is completely
commendable, some caution is required in preventing confusions
of
this nature recurring. This will be so especially where not only
multiple accused are involved, but also where serious charges,
attracting severe penalties are in issue. After all, a judicial
officer is supposed to be in complete control and in charge of
the
court. This is over and above the necessary duty to ensure that the
proceedings in court are conducted in a proper manner.
Issues such as
ensuring the correct numerical standing or seating positions of
accused persons in the accused dock, the swearing
in of witnesses,
etc, although appearing to be mundane, should be attended to
meticulously. Compliance therewith all contribute
to the ideal
atmosphere of an accused person’s right to a fair trial as
enshrined in the Bill of Rights. It will also obviate
the need to
refer matters for review unnecessarily. In
May v The State
[2005]
4 All SA 443
(SCA) at p 335f, although in a slightly different
context, the Court said:
“
Judicial officers are not required to be passive observers
of a trial; they are required to ensure fairness and justice, and if
that requires intervention then it is fully justifiable. It is only
when prejudice is caused to an accused that intervention will
become
irregular.
”
The magistrate seems to ascribe the error to the court orderly, the
prosecutor and the defence. There is no doubt, however, that
the
magistrate was ultimately responsible to prevent the error. I state
this as kindly as I can.
In the present matter there is no real prejudice to the clearly
innocent accused 1 except the possible anguish inherent in an
incorrect conviction and sentence. He was in further custody
briefly, apparently two days, after the purported conviction before
the error was rectified pending the outcome of the review.
[19] I therefore make the following order:
The verdict of guilty brought in by the Magistrate of Boksburg in
respect of accused 1 (Mr Stell Chauke) on 16 March 2009, as
well as
the concomitant sentence imposed, are hereby reviewed and set aside.
In the event that accused 2 (Mr Risimati Baloyi) is re-charged, such
prosecution is obviously to commence
de novo
before another
judicial officer.
______________________________
D S S MOSHIDI
JUDGE OF THE SOUTH GAUTENG
HIGH COURT, JOHANNESBURG
I agree:
__________________________________
N PANDYA
ACTING JUDGE OF THE SOUTH GAUTENG
HIGH COURT, JOHANNESBURG