Urgent Chamber Application
BHUNU J: The applicant is
standing trial in the Magistrates Court on charges he has not
specified in his founding affidavit. The nature of the charges that
the applicant is facing is however immaterial to the determination of
this application.
What is material is that on the
15th
February 2010 the applicant made an application for discharge at the
close of the state case. The application did not find favour with the
trial magistrate who has now been cited as the second respondent. The
trial magistrate having found no merit in the application dismissed
the application and ordered that the trial must proceed at 2:15pm on
the 4th
of March 2010. That date was subsequently extended to today the 12th
of March 2010 at 12noon.
I have further extended the time to 3pm this afternoon.
In dismissing the application for
discharge at the close of the state case the trial magistrate did not
give his reasons for his determination. Aggrieved by the trial
magistrate's interim determination the applicant's lawyers wrote
to the Clerk of Court on the 22nd
February 2010 in the following vain:
“We
refer to the above matter in an application for discharge of the
Accused at the close of the State Case which was dismissed on the
15th
March 2010.
We
confirm that our Miss Maphosa requested for reasons for judgment for
the purpose of an appeal
to
the high Court against the decision of his worship, Magistrate
Jarabini on the same day.
Kindly place this letter before his worship as a reminder.”
In paragraph 5(c) of his founding affidavit the applicant had this to
say:
“(c)
My legal practitioner indicated that the said reasons were required
for an appeal
the defence intended to file with the High Court on my behalf.”
(d)
The 2nd
Respondent advised that the said reasons would be furnished and
directed my legal practitioner to check with the court before the end
of the following week.
(e)
On the 22nd
February 2010, the beginning of the following week, Miss Maphosa
wrote a letter to the Clerk of Court which was received on 24th
February 2010 as a reminder to the 2nd
Respondent's commitment…
(f)…
(g)…
(h)…
(i)
The 2nd
respondent stated that he had not seen the letters but that he had
written on the record that despite the request by the defence, he
would only give his reasons in the main judgment.”
Aggrieved by the trial magistrate's refusal or failure to give
reasons for his interim determination the applicant logged this
urgent application to this Court seeking a provisional order staying
the criminal proceedings pending receipt of the trial magistrate's
reasons for dismissing the application for discharge at the close of
the state case.
Finally the applicant seeks an
order compelling the 2nd
respondent to furnish him with the reasons for the interim
determination.
During the course of argument counsel for the applicant made the
valid concession that it would be premature and incompetent to appeal
against the trial magistrate's interim determination at this stage
as intimated in her letter and confirmed in the applicant's
founding affidavit.
The defence having realized the folly of its written word counsel has
now made an about turn and has submitted that the defence in fact
meant that it intended to seek a review of the of the trial
magistrate's interim determination.
That may very well be so, but applications are determined on the
record with affidavits constituting the evidence.
While counsel may seek to amend her own letter, it is virtually
impossible to amend her client's affidavit.
Having regard to the letter of
the 22nd
February 2010 and the applicant's own affidavit the trial
magistrate can hardly be faulted for deciding to proceed with the
trial when the reason for which the reasons were required was
inappropriate and incompetent at law.
Counsel for the 1st
respondent has cited a plethora of cases stating that it is only in
exceptional circumstances that the superior Courts entertain interim
applications for review.
I did not here counsel for the applicant to contradict that
submission.
While I do not want to preempt the outcome of the applicant's
intended application for review I am constrained to say that he has a
mountain to climb.
That being the case the ends of justice can only be served by giving
the green light for the trial to proceed while the applicant proceeds
to lodge his application for review if he is so minded.
Proceeding with the trial is no impediment to the intended trial.
The adage that 'Justice delayed is justice denied' is apt in this
case. I have deliberately chosen to ignore the question of urgency
electing to determine the application on the merits for the sake of
finality.
It is accordingly ordered that the application be and is hereby
dismissed with costs.
Sawyer and Mkushi, the applicant's legal practitioners
The Attorney General's Office, the 1st
respondent's legal practitioners
