S v Karedi (845/2006) [2006] ZAFSHC 94 (24 August 2006)

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[2006] ZAFSHC 94
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S v Karedi (845/2006) [2006] ZAFSHC 94 (24 August 2006)

IN THE HIGH COURT
OF SOUTH AFRICA
(ORANGE
FREE STATE PROVINCIAL DIVISION)
Review No. : 845/2006
In the review between:-
THE STATE
versus
PAULINA KAREDI
_____________________________________________________
CORAM:
CILLIé
J
et
VAN DER MERWE J
_____________________________________________________
JUDGMENT BY:
VAN
DER MERWE J
_____________________________________________________
DELIVERED ON:
24
AUGUST 2006
_____________________________________________________
[1] This matter was
referred to this Court for so-called special review.
[2] The accused was
charged in the magistrate’s court of Welkom with driving a vehicle
on a public road while under the influence
of intoxicating liquor in
contravention of
section 65(1)
of the
National Road Traffic Act, No.
93 of 1996
, as well as with reckless or negligent driving
alternatively driving without reasonable consideration for any other
person, in contravention
of
sections 63(1)
and
64
of Act 93 of 1996
respectively. It is alleged that the incident in question took place
on 10 December 2003. The presence of the
accused in court was
obtained by summons in a criminal case and the accused appeared in
court as a result thereof for the first time
only on 24 June 2005.
[3] At her first
appearance in court, the accused indicated that she will make use of
her own legal representation. Thereafter the
matter was postponed on
several occasions. On most of these occasions the accused was
represented by either Mr. Ngcango or Mr. Ramatsoele.
It is also
indicated on the record that a Mr. Macheka was the attorney of the
accused. Eventually the matter was postponed to 30
March 2006 for
trial.
[4] On 30 March 2006,
when the matter was called at approximately 9h15, Mr. Ngcango
informed the court that Mr. Macheka would be defending
the accused,
and that he had requested Mr. Ngcango to inform the court that he
would be late and to ask on his behalf that the matter
stand down
untill 11h00. This request was acceded to. At 11h15 Mr. Macheka was
still absent. Mr. Ngcango informed the court that
he was unable to
reach Mr. Macheka on his cellphone and that the accused was not
prepared to instruct Mr. Ngcango in respect of the
matter. The
accused then in person requested that the matter stands down untill
14h00 in order to afford her an opportunity to call
the attorney.
The magistrate, however, ruled that the matter stands down untill
12h30. At 12h30 Mr. Ngcango informed the court
that he is not
prepared to proceed with the defence of the accused, since the
accused refuses to issue him with instructions as she
prefers Mr.
Macheka. The accused then repeated the request that the matter stand
down untill 14h00 but the magistrate ruled that
the matter must
proceed without legal representation for the accused, whereafter Mr.
Ngcango was excused.
[5] The accused then
refused to plead to the charges and a plea of not guilty was entered
by the magistrate. Thereafter the prosecutor
called three witnesses,
firstly, the driver of the vehicle with which the car driven by the
accused collided according to his evidence,
secondly, a policeman
that attended the scene after the collision and thirdly, another
policeman who also attended the scene and
handed in a sketchplan of
the scene of the accident. The gist of the evidence of these
witnesses was that the car driven by the
accused collided with the
other vehicle on the accused’s incorrect side of the road and also
that the accused appeared to be under
the influence of liquor. After
the evidence in chief of each of these witnesses was concluded, the
rights of the accused in respect
of cross-examination was fully
explained. In respect of the first witness the reaction of the
accused thereto was that she is not
prepared to say anything because
her lawyer is not there. After the conclusion of the evidence in
chief of the second and third
witnesses, the accused simply said that
she had no questions. At approximately 16h15 the matter was
postponed to 1 June 2006.
[6] On 1 June 2006, an
attorney, Ms Erasmus, appeared on behalf of the accused. On 13 June
2006 the request of Ms Erasmus, on behalf
of the accused, that the
matter be sent for special review, was acceded to and the matter was
postponed for that reason.
[7] As
appears from what is stated above, the accused has not yet been
convicted, in fact, the State case has not been closed. Therefore,
the provisions of section 304A of the Criminal Procedure Act, No. 51
of 1997, are not applicable.
[8] The High Court has
inherent jurisdiction to review the proceedings of a lower court
before conclusion thereof. This power must,
however, be exercised
sparingly as it is not in the interests of justice that trials be
dealt with on a piecemeal basis. As a general
rule therefore, the
exercise of the power of the High Court to review unconcluded
criminal proceedings in the magistrate’s courts,
should be limited
to those rare cases where injustice cannot be avoided other than by
interference before conclusion of the proceedings.
See
WAHLHAUS
AND OTHERS v ADDITIONAL MAGISTRATE, JOHANNESBURG AND ANOTHER
1959 (3) SA 113
(AD) at 119 H – 120 E and
ISMAIL
AND OTHERS v ADDITIONAL MAGISTRATE, WYNBERG AND ANOTHER
1963 (1) SA 1
(AD) at 5 G – 6 A. This principle was also applied
in the new constitutional era. See
S
v MHLUNGU AND OTHERS
[1995] ZACC 4
;
1995 (3) SA 867
(CC) at 895 D – G and
LEVACK
AND OTHERS v REGIONAL MAGISTRATE, WYNBERG, AND ANOTHER
2004 (5) SA 573
(SCA) at 585.
[9] In the present matter
considerable delay has already taken place. The accused is now
represented by an attorney. The case for
the State has not yet been
closed. The attorney for the accused could and should on resumption
of the trial apply in terms of section
167 read with section 166(2)
of Act 51 of 1977 that the witnesses be recalled for
cross-examination. It appears to me to be eminently
in the interests
of justice that such request be granted. All of this may result
therein that the accused is acquitted or accepts
a judgment resulting
in a conviction. If not, the remedy of appeal or review would then
be available.
[10] Whilst the
fundamental right of the accused to legal representation is
recognised, I am not satisfied that interference on review
with the
trial of the accused is presently necessitated by unavoidable
injustice.
[11] The matter is
therefore referred to the magistrate for conclusion thereof in
accordance with this judgment.
________________________
C.H.G. VAN DER MERWE,
J
I agree.
____________
C.B. CILLIé, J
/sp