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2024
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[2024] ZALMPPHC 129
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Phukela in re S v Phukela (REV155/2023) [2024] ZALMPPHC 129 (20 September 2024)
IN THE HIGH COURT OF
SOUTH AFRICA
LIMPOPO DIVISION,
POLOKWANE
REV: 155/2023
(1) REPORTABLE: NO/YES
(2) OF INTEREST TO
OTHER JUDGES: NO/YES
(3) REVISED
SIGNATURE:
DATE: 20/09/2024
In the matter between:
CASSIUS
PHUKELA
APPLICANT
IN RE THE MATTER
OF:
THE STATE
V
CASSIUS
PHUKELA
ACCUSED
JUDGMENT
NAUDE-ODENDAAL J:
[1]
This is Special Review Application of a
partly heard criminal trial in the Nkowankowa Magistrates Court, held
at Nkwowankowa, under
case number A07/2022, brought by the Accused,
in terms whereof the Accused requests this court's intervention and
review of the
partly heard criminal trial. The Accused submits that
the proceedings in the court
a quo
were not conducted in accordance with justice and applies that it be
stayed and ordered to start
de nova
before a different presiding officer.
It must be borne in mind that the State is still busy leading
evidence and at least 4 more
witnesses are to be called by the State.
[2]
The Applicant did not bring the application
for review on a Notice of Motion supported by a Founding Affidavit,
but merely in a
letter requesting the review of the proceedings in
the court
a quo.
It
is not clear in terms of which statute or rule the review application
is brought either.
[3]
Apart from its statutory powers to review
the proceedings in the lower courts, the High Court is vested with an
inherent jurisdiction
to correct errors occurring in proceedings
before the lower courts. This power should be exercised
sparingly and should not
be used to rectify mistakes made by one of
the parties.
[4]
The High Court will exercise its inherent
jurisdiction to review proceedings in lower courts before the
conclusion thereof in that
court, where grave injustice might
otherwise result or where justice might not by other means be
attainable. The reason why the
courts are slow to interfere with
proceedings in lower courts is to avoid a piecemeal appeal or review.
[5]
An Accused (Applicant) who wants to have
unterminated proceedings reviewed will have to make out a case that
he would suffer irreparable
prejudice if the trial were allowed to
proceed to conclusion. In addition, the Applicant will have to show
that his complaint falls
within one of the grounds of review
stipulated in Section22 of the
Superior Courts Act, 10 of 2013
.
[6]
In the present matter, there is no proper
application or affidavit before me on which to consider the review
application, in addition,
even if the letter in terms of which the
Accused requested a review is considered, no case was made out that
the review falls within
one of the grounds of review stipulated in
Section 22
of the
Superior Courts Act, 10 of 2013
.
[7]
Section 22
of the
Superior Courts Act 10
of 2013
deals with the grounds upon
which the proceedings of a Magistrate's Court may be reviewed whilst
Rule 53
lays
down the relevant procedure.
[8]
Generally a High Court will be reluctant to
review incomplete proceedings in a Magistrate's Court. (See
Motata
v Nair & Another
2009 (2) SA 575
(T) 578 H-I.).
This
is so unless the review Applicant can show grave injustice would
otherwise result, or whether justice would not be attained
by any
other means.
[9]
Section 22
of the
Superior Courts Act 10
of 2013
stipulates as follows:-
"22
Grounds for review of proceedings of Magistrates' Court
[sic]
(1)
The grounds upon which the
proceedings of any Magistrates' [sic} Court may be brought under
review before a court of a Division
are –
(a)
absence of jurisdiction on the part
of the court;
(b)
interest in the cause, bias, malice
or corruption on the part of the presiding judicial officer;
(c)
gross irregularity in the
proceedings; and
(d)
the admission of inadmissible or
incompetent evidence or the rejection of admissible or competent
evidence.
(2)
This section does not affect the
provisions of any other law relating to the review of proceedings in
Magistrates' Courts."
[10]
The grounds upon which the Applicant wants the matter to be reviewed
does not fall within the
ambit of
Section 22
of the
Superior
Courts Act 10 of 2013
.
[11]
In addition, what seems to have been
overlooked by the Applicant is that this review is one
in
medias res. In
Motata vs Nair NO
and Another
[2008] ZAGPHC 215
;
2009 (1) SACR 263
(TPD) at paragraph 9
the following was stated by Haneke
and Pickering JJ, relevant to reviews
in
medias res:
"[9]
It is trite that as a general rule a High Court will not by way of
entertaining an application
for review interfere with incomplete
proceedings in a lower court. As stated in
Wahlhaus & others v
Additional Magistrate, Johannesburg & another
1959 (3) SA 113
(ADJ at 119G, the High Court will not ordinarily interfere whether by
way of appeal or review before a conviction has taken place
in the
lower court even if the point decided against the accused by a
magistrate is fundamental to the accused's guilt. At 119H-120A
Ogilvie Thompson JA (as he then was) stated as follows:
'It is true that, by
virtue of its inherent power to restrain illegalities in inferior
courts, the Supreme Court may, in a proper
case, grant relief - by
way of review, interdict, or mandamus - against the decision of a
magistrate's court given before conviction.
(See
Ellis v Visser
and Another
1956 (2) SA 117
(W) and
R v Marais
1959 (1) SA 98
(T), where most of the decisions are collated.) This,
however, is a power which is to be sparingly exercised. It is
impracticable
to attempt any precise definition of the ambit of this
power; for each case must depend upon its own circumstances. The
learned
authors of Gardiner and Lansdown (6
1h
Ed., vol. I
p.750) state:
'While a Superior Court
having jurisdiction in review or appeal will be slower to exercise
any power, whether by mandamus or otherwise,
upon the unterminated
course of proceedings in a court below, it certainly has the power to
do so, and will do so in rare cases
where grave injustice might
otherwise result or where justice might not by other means be
attained ... In general, however,
it will hesitate to
intervene, especially having regard to the effect of such a procedure
upon the continuity of proceedings in
the court below, and to the
fact that redress by means of review or appeal will ordinarily be
available.'
In my judgment, that
statement correctly reflects the position in relation to unconcluded
criminal proceedings in the magistrate's
court.”
At 120D, the learned
Judge continued:
[T]he prejudice, inherent
in an accused's being obliged to proceed to trial, and possible
conviction, before he is accorded an opportunity
of testing in the
Supreme Court the correctness of the magistrate's decision overruling
a preliminary, and perhaps a fundamental,
contention raised by the
accused, does not per se necessarily justify the Supreme Court in
granting relief before conviction. (See
too the observation of Murray
J at pp 123- 124 of
Ellis
case supra.) As indicated earlier,
each case falls to be decided on its own facts and with due regard to
the salutary general rule
that appeals are not entertained piecemeal.
“
[12]
In
Mispha CC
and Another v The Honourable Regional Magistrate and Others, Case
No.: 2647/2011, 15 August 2013, ECO Grahamstown (delivered
on 18
September 2013)
the Full Bench held as
follows as to Review
in medias res:
"[46]
Against this background our Courts are extremely reluctant to
interfere with or allow the review of proceedings not yet
completed
in an inferior court. It has been said that a court will only do so
in exceptional circumstances where serious injustice
will otherwise
result or when justice cannot be achieved in any other way. Wahlhaus
and Others v Additional Magistrate, Johannesburg
1959
(3) SA 113
(A) at 119H - 120C;
Building Improvements Finance Co (Pty) Ltd (supra) at 793F - 794A; R
v Marais
1959 (1) SA 98
(T) at 101H; Van Tonder v Kilian NO
1992
(1) SA 67
(T) at 74O-I; Nourse v
Van Heerden
1999 (2) SACR 198(W)
;
S v The Attorney-General of the Western Cape, S
v The Regional Magistrate, Wynberg
1999
(2) SACR 13(C
)...
"
[13]
In
Adonis v
Additional Magistrate, Bellville and Others
2007 (2) SA 147
(C) at
paragraphs [21] and [22]
the following
appears:
"[21]
It is generally accepted that this Court will not readily intervene
in lower court proceedings which have not yet terminated,
unless
grave injustice may otherwise result or where justice may not be
obtained by other means. See Wahlhaus and Others v Additional
Magistrate, Johannesburg and Another
1959
(3) SA 113
(A)
at 119H - 120C; Ismail and Others v Additional Magistrate, Wynberg,
and Another
1963 (1) SA 1
(A) at 5G - 6A; Building Improvements
Finance Co (Pty) Ltd v Additional Magistrate, Johannesburg, and
Another
1978 (4) SA 790
(T) at 793F
-
G;
Levack and Others v Regional
Magistrate, Wynberg, and Another
1999
(4) SA 747
(C)
(1999
(2) SACR 151
;
[1999] 3 All
SA 374)
at 754A - F (SA).
[22]
Intervention on review will be justified in the case of a gross
irregularity which has caused, or is likely to cause, prejudice
to
the applicant. See the Building Improvements case (supra) at 792H
-
793C. In Rynders v Bankorp Ltd t/a
Trust Bank and Others
1995 (2) SA 494
(W) it was held that a magistrate's
court did not have the power to grant an ex parte application for the
provisional liquidation
of a close corporation. According to
MacArthur J (at 497B
-
D)
the grant of such an order constituted an irregularity which caused
the applicant 'substantial wrong' in that he was confronted
with all
the consequences of a provisional liquidation order. This entitled
the applicant to take the magistrate's decision on
review, despite
the fact that he might have failed to exhaust his remedies in the
magistrate's court."
[14]
In the present matter the State is still
busy leading evidence and as stated here above still has at least
four witnesses to call,
the matter is partly heard before the court
a
quo,
I am not persuaded that a grave
injustice will occur if the proceedings are not reviewed and set
aside. I am further not persuaded
that justice would not be attained
by any other means.
[15]
In my view, the correct approach would be
for the court
a quo
to hear and finalise the trial.
[16]
In the result the following order is made:-
1.
The matter is remitted back to the court
a
quo
for hearing and finalization of the
Criminal Trial.
M. NAUDЀ-ODENDAAL
JUDGE OF THE HIGH
COURT,
LIMPOPO DIVISION,
POLOKWANE
I AGREE:
M.S. MONENE
ACTING JUDGE OF THE
HIGH COURT,
LIMPOPO DIVISION,
POLOKWANE
APPEARANCES:
JUDGMENT DELIVERED
ON:
20 SEPTEMBER 2024