This
is an application for an order declaring the applicant not guilty and
acquitting her after a review of the proceedings leading to her
conviction. The
matter was placed before me as an ordinary court application although
the proceedings in the Magistrate's Court are not yet concluded in
that she has not yet been sentenced….,.
The
question raised ...
This
is an application for an order declaring the applicant not guilty and
acquitting her after a review of the proceedings leading to her
conviction. The
matter was placed before me as an ordinary court application although
the proceedings in the Magistrate's Court are not yet concluded in
that she has not yet been sentenced….,.
The
question raised in this application is whether this court has power
to intervene in un-terminated criminal proceedings in the exercise of
its inherent powers of review….,.
The
authorities indicate that this court has an inherent power of review.
In Rascher v Minister of Justice 1930 TPD
810…,
KRAUSE J said:
"…,
a wrong decision of a magistrate, in circumstances which would
seriously prejudice the rights of a litigant, would justify the
Court, at any time during the course of the proceedings, in
interfering by way of review…,.
The
above principles were laid down in a civil case and they would apply
with greater force where the proceedings are of a criminal nature and
a miscarriage of justice might result in the circumstances from a
wrong decision of the magistrate or where the rights of an accused
person are seriously affected thereby."
In
Ginsberg v Additional Magistrate of Cape Town 1933 CPD 357…,
GARDINER JP observed:
"Now,
as a rule, the Court's power of review is exercised only after
termination of the criminal case, but, I am not prepared to say that
the Court would not exercise that power…, before a termination of a
case if there were gross irregularity in the proceedings."
In
Wahlhaus v Additional Magistrate, Johannesburg & Anor
1959
(3) SA 113 (A)…, OGILVIE THOMPSON JA…, said:
"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…,.
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 LANSDOWNE (6ed Vol 1, p750) state:
'While
a superior court having jurisdiction on review or appeal will be slow
to exercise any power, whether by mandamus or otherwise, upon the
un-terminated 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 Magistrates'
Courts. I would merely add two observations. The first is that, while
the attitude of the Attorney-General is obviously a material element,
his consent does not relieve the superior
Court from the necessity of deciding whether or not the particular
case is an appropriate one for intervention. Secondly, the prejudice,
inherent in an accused's being obliged to proceed to trial, and
possible conviction, in a Magistrate's Court before he is accorded an
opportunity of testing, in the Supreme Court, the correctness of the
magistrate's decision over-ruling a preliminary, and perhaps
fundamental, contention raised by the accused, does not per se
necessarily justify the Supreme Court in granting relief before
conviction."
In
Ellis
v
Visser
& Anor
1956
(2) SA
117
(W)…, MURRAY J…, considered Ginsberg v Additional Magistrate of
Cape Town 1933 CPD 357 and observed that the learned JUDGE-PRESIDENT
in that case dealt with a case in which the trial magistrate tried
the accused in his absence in circumstances where such trial was not
permitted. The learned JUDGE PRESIDENT said this was one of the
exceptional and unusual cases where the trial magistrate had acted
with gross irregularity and had not discharged the functions
entrusted to him. GARDINER JP's view was that where a trial
magistrate performs his functions in a proper and regular manner the
superior
Court would not interfere. Referring to Rascher v Minister of Justice
1930 TPD
810,
MURRAY J indicated that as far as what KRAUSE J had said was
concerned, if that meant that any wrong decision by a trial
magistrate on a point of law was given in the course of a criminal
trial was subject to immediate interference by the superior Court he
would hold that he did not agree with that.
MURRAY
J went on to state…,:
“Even
assuming that I have the discretion to interfere in exceptional cases
I see no reason whatsoever for using that discretion in the
applicant's favour, and see considerable reason against exercising my
discretion in the applicant's favour…,.
The
grounds counsel asked me to consider were really this:
That
the title to prosecute is a sine qua non and the applicant would be
subject to hardship if the case was allowed to proceed further and
that there would be repetition of matters which would cause him to be
involved in publicity of an extremely undesirable character from his
point of view. It was also pointed out that he would be put to costs
and that he was not certain that he would be able to recover from the
prosecutor if acquitted. It was also pointed out that the case would
be a protracted one and that there would be claims on the applicant's
time as a result of this.
I
cannot see that, in regard to these matters, the applicant is in any
worse position or suffers any greater hardship than any person who is
prosecuted and eventually acquitted.
…,.
There are a number of objections which may be taken, apart from
embarrassment, in a case against an accused person; there are special
pleas…, and there are matters of exception or objections to the
plea and the indictment presented. All of these matters can be
decided, and are decided, by the magistrate. If the applicant's
contention in this case is correct, then, in every one of these cases
where a decision is taken by a magistrate there would be just as much
reason as in the present case for the accused person to claim that
this matter must be decided in limine without awaiting the results of
the merits of the case. The result would, I think, create chaos - one
envisages a succession of appeals…, whereas, it is desirable that
the actual merits should be speedily disposed of and any decisions
which are wrong in law should be corrected in the ordinary way by way
of appeal, as there can be no miscarriage of justice, no abuse of
process of the Court if the ordinary procedure is followed.”…,.
The
test as to when a superior court could intervene in un-terminated
proceedings has already been discussed above. A superior court,
having jurisdiction on review or appeal, will be slow to exercise any
such power, whether by mandamus or otherwise, and will only do so in
rare cases where “grave injustice might otherwise result or where
justice might not by other means be attained.”…,.
What
is permitted is intervention by this court that is so gross that it
is incapable of correction by way of ordinary review or appeal; or
where it is unconscionable to wait the conclusion of the proceedings
before seeking redress in the normal way. It seems to me that such
instances will be rare….,.
McComb
v Assistant Resident Magistrate & Attorney-General 1917 TPD 717
was a case where the magistrate had refused to allow certain
questions to be put to a State witness. The matter was postponed in
order to allow an application to be made for a mandamus that the
magistrate allows the questions. This is what the court said at 718:
“Moreover,
as pointed out by my brother GRWGOROWSKI, if the court is called upon
to intervene whenever a magistrate disallows a question in
cross-examination, it might protract the hearing of the case
indefinitely. After having got the court's ruling on the question,
when the matter comes up before the magistrate again, the attorney
may wish to put other questions which the magistrate deems wholly
irrelevant and the magistrate may disallow them, and, an application
may again be made to this court for a mandamus to compel the
magistrate to allow the questions. That only shows how undesirable it
is for the court, in the absence of good reasons, to intervene in the
middle of (or rather, as in this case, at the beginning) of criminal
proceedings upon an application of this nature.''…,.
All
the authorities confirm that the reason why a review of unterminated
proceedings is not countenanced is to avoid creating situations such
as here where proceedings are unnecessarily interrupted.