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[2015] ZAWCHC 144
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S v Samuels (15726/2015, SH3/65/15, 8/15) [2015] ZAWCHC 144 (9 October 2015)
IN THE HIGH COURT OF
SOUTH AFRICA
WESTERN CAPE DIVISION,
CAPE TOWN
High Court Review Ref:
15726/2015
Bellville Magistrates’
Court case no. SH3/65/15
Kuils River Magistrates’
Court serial no. 8/15
DATE: 09 OCTOBER 2015
In the matter between:
THE STATE
And
CATHLEEN SAMUELS
REVIEW JUDGMENT
BINNS-WARD J:
[1] In this matter the magistrate made
an order in terms of s 78(6)(a) of the Criminal Procedure Act 51 of
1977 (‘the CPA’)
finding the accused not guilty on a
charge of murder and directed, in terms of s 78(6)(i)(aa), that she
be detained in a psychiatric
hospital pending the decision of a judge
in chambers in terms of
s 47
of the
Mental Health Care Act, 2002
.
The matter was thereafter placed before me in chambers as a ‘special
review’, without any reason for that procedure
being apparent.
I therefore queried why the matter had been sent on special review.
When the file found its way back to me a
few weeks later, it bore a
Postit sticker on the cover, presumably attached by the magistrate,
on which was written ‘This
is not a special review. The record
must be given to a Judge in chambers’. This was mystifying as
the accused had been
legally represented in the trial court, and thus
there was no reason for the case to have come on so-called ‘automatic
review’
in terms of
s 302
of the CPA.
[2] It appears that the magistrate may
have been influenced by the judgment in S v Ramokoka
[2006] ZAGPHC 37
;
2006 (2) SACR 57
(W), or the recent judgment of the full court of the North Gauteng
Division in S v Maluka
2015 (2) SACR 273
(GP) to send the case on
review. If so, it would have been helpful if he had said so. It
would have spared me the time and trouble
of trying to identify a
reason for the matter having been sent on review.
[3] In Ramokoka, the court held that as
‘a matter of good practice’, magistrates should refer all
their orders under
s 77(6)
of the CPA to the High Court for review.
It seems, however, that the judgment was given in ignorance of two
previous decisions
in the Transvaal Provincial Division to the
opposite effect: S v Wills
1996 (2) SACR 105
(T) and S v Van Wyk (1)
2000 (1) SACR 79
(T). The judgment was also confessedly at odds with
the judgment of this court (per Grosskopf J, with Friedman J
concurring) in
S v Blaauw
1980 (1) SA 536
(C).
[4] In S v Zondi
2012 (2) SACR 445
(KZP), the KwaZulu Natal Division of the High Court declined to
follow Ramokoka and endorsed the aforementioned Cape and Transvaal
Provincial Division judgments.
[5] In Maluka, as in the current
matter, an order in terms of
s 78(6)
of the CPA. was involved. The
full court essentially endorsed the approach taken in Ramokoka. It
did so acknowledging that it
was primarily the task of legislature to
amend the CPA if matters of this nature were to be sent on review as
a matter of course.
The court held, however, that pending
legislative intervention, such matters should be sent on review ‘as
a matter of good
practice’. The opportunity for legislative
intervention in the light of pertinent reported jurisprudence has
existed for
35 years. There is no reason to believe that it will
happen. On the contrary, the legislative trend has been towards
increasing
the jurisdiction of the regional magistrates’ courts
to a level where their powers as courts of first instance are largely
indistinguishable from that of the High Court. The very fact that
the accused in the current matter was arraigned in the regional
court
on a charge of murder illustrates the point.
[6] I would respectfully associate
myself with the views expressed by Ploos van Amstel J (Patel AJP
concurring) in Zondi, at para
17-21:
[17] There is ample authority for the
proposition that an order in terms of
s 77(6)
is not subject to
automatic review in terms of the CPA.
Section 302
, read with
ss 303
and
304
(1) and (2), provides that certain sentences 'shall be subject
in the ordinary course to review by a judge . . .'. An order in terms
s 77(6)
is not a sentence, with the result that
s 302
does not apply
to it. Nor does
s 304(4).
The special review provided for in that
section also only applies where a sentence has been imposed.
[18] The basis on which the court in
Ramokoka suggested that such orders should be submitted for review is
'the potential for serious
prejudice to an accused person where an
order is made in terms of
s 77(6)'
and that it would be a good
practice to do so.
[19] An accused against whom an order
is made in terms of
s 77(6)
has the right to appeal against that
finding. Where the appeal is allowed the court of appeal sets the
direction aside and remits
the case to the court which made the
finding, whereupon the relevant proceedings continue in the ordinary
way. Further, in terms
of
s 47
of the
Mental Health Care Act a
number
of persons may apply to a judge in chambers for the discharge of a
state patient. They are the state patient, an official
curator ad
litem, an administrator (if appointed), the head of the health
establishment at which the state patient is admitted,
the medical
practitioner responsible for administering care, treatment and
rehabilitation services to a state patient, a spouse,
an associate or
a next of kin of the state patient, or any other person authorised to
act on behalf of the state patient.
[20] Magistrates have the power to
impose sentences which involve serious prejudice. Not all their
sentences are subject to review.
Some sentences are subject to review
only if they were imposed by a magistrate below a specified level of
seniority. The potential
for serious prejudice does not seem to me to
justify the creation of a new category of automatic review. In S v
Blaauw Grosskopf
J (as he then was) said:
'Die landdros wys daarop dat 'n persoon
ten opsigte van wie so 'n bevel gemaak is, moontlik nie sy reg tot
appel sal begryp nie.
Die reg van appel is egter juis bedoel om 'n
person te beskerm wat wel in staat is om die verrigtinge behoorlik te
begryp en derhalwe
veronreg is deur 'n bevel ingevolge art 77(6).
Maar, hoe dit ook al sy, selfs al sou 'n reg tot appel nie genoegsame
beskerming
bied nie, sou dit na my mening nie die Hof veroorloof om
'n stelsel van outomatiese hersiening te skep waarvoor die Wetgewer
geen
voorsiening gemaak het nie.'
I respectfully agree with this
approach.
[21] In my view there is no obligation
on magistrates to submit orders in terms of
s 77(6)
of the CPA for
review as a matter of course. If a magistrate has reason to believe
that there may be a problem in a particular
case he is, of course,
free to submit the matter for review. In such a case the high court
will exercise its powers of review if
the circumstances require it.
(Footnotes omitted.)
Those remarks apply equally to
proceedings resulting in an order in terms of
s 78(6)
of the CPA.
[7] The judgments in Ramokoka and
Maluka in any event do not affect the binding authority of the
judgment in S v Blaauw in this
Division. Accordingly, if the
magistrate was not concerned that there had perhaps been something
untoward or irregular in the
proceedings, the matter should not have
been sent on review.
A.G. BINNS-WARD
Judge of the High Court
BOZALEK J:
I agree.
L.J. BOZALEK
Judge of the High Court