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2024
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[2024] ZAFSHC 151
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Van Zyl v Magistrate Smith N.O and Others (5725/2022) [2024] ZAFSHC 151 (20 May 2024)
IN
THE HIGH COURT OF SOUTH AFRICA
FREE
STATE DIVISION, BLOEMFONTEIN
Reportable:
YES/NO
Of
Interest to other Judges: YES/NO
Circulate
to Magistrates: YES/NO
Case
No. 5725/2022
In
the matter between:
CORNELIUS
AXEL JOHANNES VAN ZYL
APPLICANT
And
MAGISTRATE
SMITH N.O.
1
ST
RESPONDENT
MAGISTRATE'S
COURT HARRISMITH
MRS
KOLOBI
2
ND
RESPONDENT
CONTROL
PROSECUTOR HARRISMITH
3
RD
RESPONDENT
DIRECTOR
OF PUBLIC PROSECUTIONS
FREE
STATE: BLOEMFONTEIN
CORAM:
MOLITSOANE, J et
MAJOSI, AJ
JUDGMENT
BY:
MAJOSI,
AJ
HEARD
ON:
29 APRIL 2024
DELIVERED
ON:
20 MAY 2024
[1]
The applicant
seeks an order in terms of Uniform Rule 53 to review and set aside an
order by the First Respondent under case number
872/2020.The
applicant furthers seeks the matter to be struck off the roll and
should not be re-enrolled unless the third respondent
has applied her
mind to certain 18 files to which I will refer to later in this
judgment.
[2]
In preparation
of this matter, it was noted that no heads of argument were filed by
the applicant as required by this court's practice
directives. Due to
the nature of the proceedings, the interest of the minor children and
that the applicant's first
appearance
in
the
district
court
being
the
14
th
of
October
2020,
it
was agreed
that
verbal
arguments
be
hear
-
d
notwithstanding
the
failure
by
the applicant
to file its heads. No opposing papers were filed and to that end, we
were provided with a Notice to Abide as filed
by the state attorney
on behalf of all the respondents on the 1
st
of
December 2022.
[3]
The
Applicant first appeared in the Harrismith Magistrate Court on the
14
th
of
October 2020 on the said charges and after numerous postponements and
pre trials, a final pre-trial was held on the 1
st
of
August 2022. The matter was certified trial ready for two days with
the provision that the defence be provided with unobscured
pages of
certain prescribed medication and invoices contained in pages
62,74,75,76 and 490 of the further particulars and an amended
charge
sheet.
[1]
[4]
On
the first day of the trial being the 22
nd
of
September 2022, the presiding officer's attention was drawn to the
fact that the defence had not timeously received the said
documents
.
and
it was also submitted that the prosecution was served with a notice
in terms of
section 342A
of the
Criminal Procedure Act 51 of 1977
as
amended on the 16 of September 2022
[2]
for the court to investigate the state's failure to comply with the
pre-trial directives as issued by court and such may be construed
as
an unreasonable
delay.
Counsel
for
the applicant however placed on record that they only received same
on the 19 of September 2022 after several failed requests.
It was
asserted that the state's failure to furnish the further particulars
timeously amounted to an unreasonable delay in the
proceedings and
their preparation for trial and that a further postponement must be
refused and that the matter must be struck
-
off
the roll.
[3]
[6]
The
second respondent objected to the matter being struck off the roll
and indicated that though it was agreed that the defence
would be
provided with the above-mentioned pages and a revised charge sheet,
there were no timelines set in that regard. She further
indicated
that the said pages consisted of invoices and receipts of medication
sourced for the minor children and that the complainant
would use the
originals in court
[4]
and this
cannot be seen as an unreasonable delay.
[7]
She
contended that the revised charge sheet did not in any way affect any
of the elements of the charges that the applicant was
facing but
simply amounted to the actual wording of the maintenance order being
amended so it may substantially comply with the
order made by the
High Court Though she acknowledged that it was only sent on the 19 of
September 2022, she attributed the delay
to lack of electricity in
Harrismith itself as the power outage persisted for three weeks.
[5]
Furthermore,
that the delays in the matter can mostly be attributed to the
Applicant as various postponements were granted to him
to obtain the
services of various attorneys and advocates, consultations and the
current legal representative appearance in court
which amounted to
about ninety postponements
[6]
and only three of the postponements
can
be attributed to the prosecution and the complainant due to
contracting the COVID 19 and a family bereavement.
[8]
After hearing
the submissions of the parties, the application to have the matter
struck off the roll was dismissed and the matter
was rolled to the 23
September
2022 for
trial and the state to provide the defence with the original
documents of the said pages and address any concerns raised.
The
state and the defence were also directed to address the court about
the desirability of converting the trial into a maintenance
enquiry
in terms of section 41 of the Maintenance Act considering the best
interests of the child, any defence raised by the accused
and whether
there was a deterioration of the accused financial services.
[9]
On the 23
rd
of September 2022 instead of the parties addressing the court about
converting the maintenance trial into an enquiry, counsel for
the
applicant raised the issue of the complainant's counsel (watching
brief) carrying into court three crates filled 18 files and
demanded
access to same in preparation for trial as they implied that the
state will be ambushing his client. The second respondent
indicated
to court that she is not aware of the contents of the files as far as
she is concerned, she was already in possession
of documents relevant
to the charges that the Applicant was facing.
[10]
To that end, the first respondent stood the matter down for the
second respondent to confirm the contents
of the files and upon
resumption of court, it was placed on record that the files pertained
to complainant and applicant's litigation
in other forums such as
other criminal court cases, domestic violence proceedings and orders,
affidavits in police reports and
school reports. She further
indicated to court that she does not intend using the said documents
as they were not relevant to the
charges that the accused was facing
for arrear maintenance
.
Counsel for
the defendant
however,
despite conceding
that it is a
simple explanation, argued that the 18 files were brought to court by
the complainant to be utilized and that the prosecution
has no idea
what is happening in its case and alleged again that the accused
rights to a fair trial are being infringed.
[11]
The First defendant after consideration, directed that the trial
proceeds as the second respondent had indicated
all information
relevant to the charges were provided to the defence and the
information contained in the crates are not relevant
and may not be
used in the criminal trial unless expressly applied for. The court
also
made
a
ruling that
it
had
also
not
received
any
information
to
consider
converting the trial into a maintenance enquiry.
[7]
After this ruling, it was then when counsel requested the matter to
be remanded for the purpose of launching Rule 53 review proceedings
in the Free state High Court.
[12]
The Applicant
initially alleged that the obscured medical invoices on pages
62,74,75,76 and 490 were necessary to determine if an
expert was to
be instructed to verify if these were necessary and reasonable
medical expenses and that by not having access to
same before trial,
prejudiced his preparation for trial purposes and his own assessment
of medical costs. Furthermore, that the
probabilities are high that
the eighteen files are relevant to the current proceedings and that
the watching brief attorney brought
the files to court knowing fully
well that it is relevant and did not assist the second respondent in
re-assessing this new information.
[13]
The
applicant also further alleged that the second had a duty to consider
and discover all relevant evidence to allow accused persons
to
prepare for trial and must do so in the interest of justice and act
in good faith to assist the court in making a just decision
and her
failure to properly consider the 18 files and her refusal to so made
her conduct
unlawful.
[8]
To
that
end,
Van
Der Westhuizen
v
S
2011 (2) SACR 26
(SCA) was quoted in the founding affidavit as to the
special role of the prosecutor.
[14]
The Applicant persisted with the argument that the court erred in
making the ruling that the second respondent
can apply to court to
admit documents from the 18 files during the trial as same would
render the trial unfair as the prosecutor
indicated that the
complainant wanted to refer to those documents during her evidence
giving traction to their assertion that the
eighteen files are
relevant to the charges that the accused is facing.
Shabalala
v Attorney General Transvaal
[1995] ZACC 12
;
1995
(2) SACR 761(CC)
was quoted in the founding affidavit indicating that
this will impact his right to a fair trial as the First respondent by
making
such a ruling, condoned a blanket privilege over the files.
[9]
[15]
In my view,
had the First respondent not allowed the second respondent to
ascertain and verify the contents of the 18 files were
before the
trial proceedings commenced, that may have been deemed irregular if
documents from those files would have been used
during the trial.
Even then, this does not take away the Applicants right to object to
the usage of documents which they have not
received as part of their
further particulars bundle. The second respondent was given an
opportunity to assess the contents of
the files and deemed it
irrelevant for the purpose of the charges that the accused was
facing. It thus cannot be said that she
acted unlawfully or did not
consider any information that was at her disposal to assist the court
in making a just decision
.
[16]
Though
assertions were made by the applicant that the complainant in the
matter intends on using the said documents during her evidence,
it is
clear that the second respondent, as
dominus
litus
exercised
her discretion and indicated that same was not relevant. She placed
on record that the documents in possession of the
complainant
pertained to proceedings in other courts involving the very same
parties relating specifically to domestic violence,
police affidavits
and school reports. In my view, the
Van
der Westhuizen
case
is also distinguishable from this matter as the trial had actually
commenced and the appellant alleged the state could have
called
additional witnesses to testify to his state of mind after he had
shot and killed his three children and same may sketched
him in a
better light to the court and would have resulted in him not making
admissions in terms of
section 220
of the
Criminal Procedure Act 51
of 1977
as amended.
In
casu,
the
trial had not even commenced and the said documents were already
deemed irrelevant by the prosecution as other proceedings involving
the parties do not relate to arrear maintenance.
[17]
The
applicant's argument that the first respondent should have struck the
matter from the roll is flawed for several reasons. Firstly,
the
prosecution had insight into the 18 files and made it known that it
will not be used during the criminal trial. This in itself
ought to
have signaled to the Applicant and his counsel that the documents
would not take the state case further for the purpose
of proving the
charges against the accused. The prosecution knew what the state case
was all about and what it needed to
prove the
same, it could
not
be expected that she must second guess what possible defence the
applicant is going to raise. It would be absurd that if in
a criminal
case a complainant walks in court with some documents, which no
nobody except the said complainant knows nothing about,
then the
accused should be entitled to have the said documents
'discovered'.
The contention by the applicant that the prosecution was responsible
for the delay herein is misplaced as the delay
should be placed
squarely at the door step of the applicant for insisting that the
state should look into the 18 files which according
to the stat were
irrelevant for the purpose of the trial.
[18]
Now ideally,
before the start of trial proceedings, a prosecutor should
familiarize herself with the contents of the docket and
consult with
a complainant and if necessary, obtain further information or
documentation relevant to prove the charges against
an accused. If
indeed she was confronted with 18 additional files, she ought to have
consulted the third respondent for guidance
as to whether the
criminal case is to be pursued further, if further investigations are
required and if the 18 files in possession
of the complainant, would
have any impact on their prosecution for arrear maintenance and if
representations from the accused would
be considered in that regard.
This can be done at any stage before the trial commences. Although
the second respondent's submission
to court did not include her
consulting with the third respondent, it is clear that she had a
cursory look at the files and from
that point on, determined that the
evidence is irrelevant and would not be used during trial
proceedings.
[18]
Secondly, the Applicant
herein
had an indication from his own copy of the further particulars which
documents would be used during the trial. Moreover,
during the court
proceedings on the 22
nd
September
2022, they indicated to court that they are ready to proceed to trial
based on documents already in their possession
were not asking for a
postponement.
[10]
They also
confirmed that they were indeed provided with the original pages of
62,74,75,76 and 490. After receiving same, no mention
was made that
it would indeed be necessary to secure the services of an
expert.
The amended charge sheet was also received by them albeit late, on
the 16th of September 2022. After the second respondent
addressed
court that the amendment to the charge sheet was at the request of
the applicant to include the exact wording of the
maintence order and
was inconsequential, no objection to the charge could be found in the
proceedings signaling that this was not
an issue. This in itself is
indicative of the fact that the matter was ripe for hearing and no
postponement was necessary.
[19]
Thirdly, the court's order on the 22 of September 2022 was specific
as the parties were to address court
as whether it would be in the
interest of justice to convert the matter into a maintenance enquiry
with due regard to possible
defences contained in
section 31(2)
of
the Act. The Applicant made no submissions in that regard as per the
transcribed record. In the absence thereof, it is my view
that the
order that the matter should proceed, was thus justified in the
prevailing circumstances.
[20]
The order made by the first respondent was purely interlocutory in
nature and the review application was
unnecessary
as
the court order made did not in any way take away the ordinary rights
afforded to the Applicant to object to the usage of documentation
which may not be relevant to the charge. In the recent Supreme Court
of Appeal case of
Heidi
Joubert v Pierre Joubert,
[11]
it was stated that interlocutory
orders
do not have the final effect of disposing
of
a matter or a substantial portion of the relief claimed by parties
but they (the parties) are still at liberty to prosecute and
direct
the court to any evidence and advance any argument they so wish
during the trial.
[21]
The time that
it took to have this matter started impacts not only the
administration of justice but negatively affects the interests
of the
children. The presiding officer is enjoined to take control and case
manage this matter and to ensure that it is dealt with
expeditiously
to its conclusion. Though it is uncertain as to what the status of
this matter is on the court roll of Harrismith
Magistrate's Court,
the
second
and
third
respondents
on their
part,
must
ensure
that
this
matter
is enrolled for plea and trial at the earliest available date as a
preferent case on the court roll.
Accordingly,
the following
order is made:
ORDER
1.
The
application is dismissed;
2.
There is no
order as to costs.
MAJOSI
O.R, AJ
I
concur
MOLITSOANE
P.E, J
APPEARANCES:
On
behalf of the Applicant
Adv.
Venter
Instructed
by:
c/o
Venter Attorneys
Harrismith
On
behalf of the Respondents
No
appearances
[1]
Indexed
bundle P 222 -
230,
Transcribed record of proceedings of 1 August 2022.
[2]
Ibid
P 82 -83, Transcribed record of proceedings for 22 September 2022.
[3]
Ibid
P 156-158.
[4]
Ibid
P 166.
[5]
Ibid
P167 -169.
[6]
Ibid
168, line 3,10 and 20.
[7]
Transcribed
record, P 200-201.
[8]
Founding
affidavit, paragraphs
68
-72
[9]
Founding
affidavit, para 83 - 90
.
[10]
Indexed
bundle P164 -165, Transcribed record for 22 September
2022.
[11]
(285/2023)
[2024] ZASCA 55
(19 April 2024) at paragraph 16.