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[2014] ZAWCHC 55
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Van Staden and Others v S (A283/13) [2014] ZAWCHC 55; 2014 (2) SACR 533 (WCC) (11 March 2014)
IN THE HIGH COURT
OF SOUTH AFRICA
[WESTERN CAPE
DIVISION, CAPE TOWN]
Case
No: A283/13
DATE:
11 MARCH 2014
REPORTABLE
In the matter
between:
JOHANNES ERASMUS
VAN STADEN
...................
First
Appellant
MARC
SCHOEMAN
.............................................
Second
Appellant
GARY WYBO
NEWMARK
.....................................
Third
Appellant
And
THE
STATE
...................................................................
Respondent
JUDGMENT
DELIVERED:
TUESDAY, 11 MARCH 2014
FOURIE, J:
[1] The three
appellants and their co-accused are charged in the Western Cape High
Court under case number CC15/2010 with racketeering,
money
laundering, fraud and forgery. The indictment relating to the
charges brought against them, was served on the appellants
and their
co-accused when they appeared in the magistrate’s court on 15
December 2009. The indictment is in Afrikaans.
[2] The matter was
subsequently referred for trial in the Western Cape Division, Cape
Town. In accordance with the practice in
this Division, appellants
then attended pre-trial conferences at which procedural and
administrative matters are attended to, prior
to the commencement of
a criminal trial. At a pre-trial conference held on 10 May 2010,
first appellant applied for the indictment
to be translated into
English. Hlophe JP, who presided at the pre-trial conference,
refused the application. At a subsequent
pre-trial conference held
on 11 October 2010, third appellant also applied for the indictment
to be translated into English. Similarly,
the application was
refused by Hlophe JP.
[3] During February
2012, the appellants applied for leave to appeal to a Full Court of
this Division against the decisions of Hlophe
JP refusing the
applications for the indictment to be translated into English. The
learned Judge President granted the applications
for leave to appeal.
It appears that, when the applications for leave to appeal were
argued, the issue as to the appealability
of a decision of this
nature was not canvassed.
[4] Prior to the
hearing of the appeal, this court directed that the jurisdictional
issue as to the appealability of the decisions
refusing the
translation of the indictment, be determined first. It should be
emphasized that the mere fact that leave to appeal
was granted, does
not mean that the decisions of Hlophe JP, are therefore appealable.
The jurisdictional issue as to appealability,
has to be decided by
this court as the court of appeal.
[5] In determining
this jurisdictional issue, it is necessary to firstly determine which
matters in criminal proceedings are appealable.
As pointed out by Du
Toit et al in Commentary on the Criminal Procedure Act, at 31-11, in
order for a judicial decision to be
appealable it has to be a
judgment or order. The learned authors state that, generally
speaking, the essential qualities of a
judgment or order are the
following:
(i) It has to be
final in effect with a final meaning unalterable by the court whose
judgment or order it was.
(ii) It has to be
definitive of the rights of the parties.
(iii) It has to be
dispositive of at least a substantial portion of the relief claimed
in the main proceedings.
See: Zweni v
Minister of Law and Order 1993(1) SA 523 (A) at 532I-533B; S v
Western Areas Ltd and Others
2005 (1) SACR 441
(SCA) at 451 (para
20).
[6] In the recent
decision of S v Duma
2012 (2) SACR 585
(KZP) Ndlovu J (with Lopes J
concurring), dealt as follows with the finality requirement of a
judgment or order, at 589 (para 8):
“The general
rule is that, once a court has pronounced a final judgment or order
in a given matter, the court has itself no
authority to correct,
alter or supplement that judgment or order. In that respect the
court had become functus officio, in that
its jurisdiction in the
matter has been fully and finally exercised and, therefore, its
authority over the subject – matter
has ceased. However, not
every decision which a court makes constitutes a ‘judgment or
order’ which is appealable.
In certain circumstances the
court’s decision would only constitute a ‘ruling,’
which was merely a direction
against which there was no appeal unless
the decision disposed of a part of the relief claimed.”
I am in respectful
agreement with this reasoning.
See also Firestone
SA (Pty) Ltd v Genticuro AG
1977 (4) SA 298(A)
at 306F-G; Van
Streepen & Germs (Pty) Ltd v Transvaal Provincial Administration
1987 (4) SA 569
(A).
[7] As pointed out
in Duma (at para 10), it was reiterated in Van Heerden v De Kock NO &
ʼn Ander
1979 (3) SA 315
(E) at 319 D, that, in criminal
proceedings, a presiding officer is not functus officio until after
conviction, and only becomes
so at the point when the accused is
sentenced. This principle brings one to the relevant provision of
the Criminal Procedure Act
51 of 1977 (“the CPA”), namely
section 316(1)(a), upon which the State relies for the submission
that the decisions
of Hlophe JP are not appealable.
[8] Section
316(1)(a) of the CPA reads as follows:
“Subject to
section 84
of the
Child Justice Act, 2008
, any accused convicted of
any offence by a High Court may apply to that court for leave to
appeal against such conviction or against
any resultant sentence or
order.”
[9] When this
subsection is read with the provisions of
sections 316B
,
318
and
319
of the CPA, it is clear that, absent a conviction, the CPA does not
afford an accused a right of appeal. A distinction is drawn
in the
case of bail proceedings, where an accused is afforded the right to
appeal to a superior court with regard to the refusal
of bail and the
conditions on which an accused was granted bail. See
sections 65
and
65A
of the CPA.
[10] The State is no
doubt correct in its submission that the proceedings before Hlophe
JP, were criminal proceedings, being part
of a criminal pre-trial
conference. It therefore follows that the provisions of
section 20
of the Supreme Court Act No. 59 of 1959, which deal with appeals in
civil proceedings, do not assist the appellants. The State
therefore
submits that, as the appellants have not yet been convicted and
sentenced, they have no right of appeal against the decisions
made by
Hlophe JP at the relevant two pre-trial conferences.
[11] It seems to me
that the decisions made by Hlophe JP at the pre-trial conferences,
that the appellants are not to be provided
with an English version of
the indictment, cannot be regarded as final judgments or orders which
are appealable. It should be
borne in mind that Hlophe JP is not
seized with the trial of this matter. He was merely presiding at a
pre-trial conference held
to facilitate the smooth running of the
criminal trial which would take place some time in the future. What
the learned Judge
President did, was to give a direction or ruling
that the appellants would not to be provided with an English version
of the indictment.
In my view, this ruling is capable of
reconsideration by a judge presiding at any subsequent pre-trial
conference, as well as
the judge who would be presiding at the trial.
In that sense, the court a quo’s authority over this issue has
not ceased
and the decisions of Hlophe JP are therefore not final in
law. Nor do the rulings dispose of any part of the issues to be
decided
at the trial. I therefore conclude that the decisions merely
embodied directions or rulings against which no appeal lies.
[12] I should also
mention that, in my view, the decision in S v Western Areas Ltd,
supra, does not detract from the conclusion
that I have reached in
this matter. In that case the Supreme Court of Appeal held that, by
virtue of the provisions of section
39(2) of the Constitution, a
judicial pronouncement in criminal proceedings may be appealable
prior to conviction, if the interests
of justice so demand. However,
it is clear from the judgment that it was common cause that the
finding of the court a quo in that
instance (rejecting an objection
to the charge sheet) was appealable and the only question was when to
appeal.
[13] In Broome v
Director of Public Prosecutions, Western Cape, and Others; Wiggins &
Another v Acting Magistrate Regional Magistrate,
Cape Town, &
Others,
2008 (1) SACR 178
(C), the court held, on the strength of S v
Western Areas Ltd & Others, supra, as follows at para 41:
“Section 39
(2) of the Constitution therefore enjoins this court and imposes an
obligation to construe that a judicial pronouncement
in any criminal
proceedings may be subject to an appeal, even before plea, where the
interests of justice so requires.”
[14] It is clear
from the latter judgment, that, as in the Western Areas Ltd –
case, the issue was not whether the ruling
appealed against was
appealable, but when such an appeal should be brought. This is clear
from para 42 of the judgment where the
court put it as follow:
“I consider
for the reasons that appear from the body of this judgment, that this
court should entertain the challenge to
the acting regional
magistrate’s decision now, rather than at the end of the
criminal trial.”
[15] In the instant
matter the question is not when an appeal against the decisions of
Hlophe JP would lie, but whether the decisions
are appealable. The
decisions of Hlophe JP were, for the reasons already furnished, mere
interlocutory rulings and therefore not
subject to an appeal. I
should add that, in the Western Areas Ltd – case, it was
stressed that there are no constitutional
imperatives for declaring
orders of this nature appealable. It was put as follows at para 12:
“…no
reason suggests itself that the framers of the Constitution would
have wanted to render decisions such as rulings
on evidence or
interlocutory procedure appealable.”
[16] This conclusion
does not mean that the appellants are without a remedy. If they are
able to show that their constitutional
rights have been infringed by
the refusal to provide them with an English version of the
indictment, they may, apart from renewing
their applications,
consider seeking a declaratory order in terms of section 19(1)(a)(ii)
of the Supreme Court Act 19 of 1959
and/or section 38 of the
Constitution, together with appropriate ancillary relief. I wish to
emphasize that I do not express any
view on whether or not appellants
would be entitled to such relief.
[17] In the result I
propose that the appeal be dismissed.
PB Fourie J
I agree.
E Baartman J
I agree and it is
so ordered.
JHM Traverso DJP